Citation Nr: 1757728 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 08-14 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating for status post right total knee replacement (previously rated as osteoarthritis of the right knee), rated as 20 percent disabling prior to January 12, 2016, and as 30 percent disabling as of that date. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee (left knee disability). 3. Entitlement to compensable rating for left knee DJD limitation of extension, to include a separate rating prior to December 1, 2016. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 14, 2015. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from May 1978 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2010, the Veteran testified before the undersigned during a Board hearing held at the RO. In August 2015, the Board denied the claims of entitlement to increased ratings for bilateral knee disabilities and remanded the claims of entitlement to an increased rating for the left foot disability and a TDIU to the Agency of Original Jurisdiction (AOJ). In a May 2016 Joint Motion for Remand (JMR), the Court of Appeal for Veterans Claims (Court) vacated and remanded the issues of entitlement to increased ratings for bilateral knee disabilities. In an August 2016 decision, the Board remanded the issues of increased ratings for bilateral knees and entitlement to TDIU for actions consistent with the JMR, and denied the claim of entitlement to an increased rating for the left foot disability. In July 2017, the RO granted (1) a 30 percent rating for the right knee, now characterized as noted above, effective from January 1, 2016, (2) service connection and a noncompensable rating for right knee surgical scar effective from January 1, 2016, and (3) service connection and a noncompensable rating for left knee DJD limitation of extension effective from December 1, 2016. The RO denied (1) a rating in excess of 10 percent for the left knee disability and (2) TDIU, but characterized the claim as limited to prior to September 14, 2015, as that is the date from which the Veteran's scheduler rating is 100 percent. The left knee increased rating claim includes the now service-connected limited extension rating, as such, that claim has been added as a separate issue. As sufficient efforts were made to obtain the noted medical records and the requested medical examinations with opinions were obtained, the Board finds the remand directives have been substantially complied with, and the matter again is before the Board. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) FINDINGS OF FACT 1. Prior to January 12, 2016, right knee disability was manifested by not more than limitation of flexion with complaints of pain; flexion is not limited to 15 degrees or less. 2. The Veteran underwent right knee TKR on January 12, 2016. 3. From January 13, 2017, right knee TKR is manifested by not more than limited motion with some pain complaints but without chronic residuals of severe painful motion or weakness. 4. Left knee disability (other than extension) is manifested by not more than painful motion; flexion is not limited to 30 degrees or less. 5. Left knee extension is functionally limited to10 degrees at all times relevant to this claim. 6. The Veteran filed claims for TDIU in August 2014, and June 2015, ultimately noting he last worked full-time on May 26, 2015, and became unable to work due to service-connected disabilities on June 18, 2015. 7. The Veteran is rendered unemployable as the result of service-connected disabilities from June 18, 2015. CONCLUSIONS OF LAW 1. Prior to January 12, 2016, the criteria for a rating in excess of 20 percent for right knee disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017). 2. From January 12, 2016, the criteria for a 100 percent rating for right knee TKR have been met; from January 13, 2017, the criteria for a rating in excess of 30 percent have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5055 (2017). 3. The criteria for a rating in excess of 10 percent for left knee disability (other than extension) have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2017). 4. The criteria for a 10 percent rating, and no higher, for left knee DJD limited extension have been met at all times relevant to the claim for left knee increased rating. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Codes 5003, 5261 (2017). 5. The criteria for entitlement to a total disability rating based on unemployability due to service-connected disabilities have been met not prior to June 18, 2015. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103 (a), 5103A (West 2012); 38 C.F.R. § 3.159 (2017). VA's duty to notify was satisfied by an August 2006 letter. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, the Veteran's service treatment records, VA medical treatment records, and private medical treatment records have been obtained. Multiple VA examinations were conducted in conjunction with this claim. Most recently, examination was performed in December 2016 with addenda in April 2017 and June 2017. These examination reports are adequate for rating purposes, as they reflect that the examiner considered the Veteran's reported symptoms and limitations, performed thorough clinical evaluations and rendered findings applicable to the relevant rating criteria. The examination complies with the recent decisions by the Court in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App 26 (2017). Moreover, the Veteran has not reported, and the evidence does not suggest, that either his left knee or right knee have increased in severity, for the pertinent periods on appeal, since he was last afforded a VA examination. To the extent that there is some indication in the record that the private treatment records dated in April 2016 that the Veteran was planning to undergo a left TKR in 2017, he did not respond to a request for clarification that such surgery has taken place. Moreover, his representative's November 2017 appellate brief does not reflect that such surgery has taken place or is scheduled. This claim cannot go on in perpetuity. The duty to assist is a two-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board has no further duty in this regard. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints 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. The Board has considered the entire record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. A. Knee ratings-Law and Background The Veteran's left knee degenerative joint disease historically was rated under DC 5003-5257 for arthritis substantiated by X-ray findings (DC 5003) and recurrent subluxation or lateral instability (DC 5257). During the course of the appellate time period, the rating was changed to DC 5003-5260, as analogous to arthritis and limitation of flexion (DC 5260). A separate rating was recently assigned by the RO for left knee DJD limited extension under DC 5261. Prior to January 12, 2016, his right knee osteoarthritis was consistently rated under DC 5010-5260 for arthritis, due to trauma, substantiated by X-ray findings, (DC 5010) and for limitation of flexion of the knee (DC 5260). In this regard, the Board notes that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2017). However, as reflected in the July 2017 rating decision, the right knee disability has been recharacterized as status post total knee replacement (TKR), and rated 30 percent disabling under DC 5055, in consideration of a right TKR, as of January 12, 2016. 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. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. 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. 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. Under VAOPGCPREC 9-2004, separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (September 17, 2004). Because ratings may be separately assigned for limitation of flexion and limitation of extension, the Board will consider both Diagnostic Codes. Degenerative or traumatic 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. 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, to be combined, not added under diagnostic code 5003. 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, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code 5257 pertains to other impairment of the knee involving recurrent subluxation or lateral instability and provides a 10 percent rating for slight impairment, 20 percent rating for moderate impairment, and 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The VA General Counsel has issued a precedential opinion holding that separate ratings may be assigned for arthritis with limitation of motion under Diagnostic Code 5260 or 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). DC 5258 provides for a single 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 provides for a single 10 percent rating for removal of symptomatic semilunar cartilage. DC 5055 is the rating criteria for the prosthetic replacement of a knee joint. Under this code, for one year following implantation, the knee joint warrants an evaluation of 100 percent. 38 C.F.R. § 4.71. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent evaluation is warranted. Id. Where there are intermediate degrees of residual weakness, pain, or limitation of motion, Diagnostic Code 5055 instructs that they are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum evaluation for the residuals of the prosthetic replacement of a knee joint is 30 percent. DC 5256 provides that unfavorable ankylosis in flexion between 10 and 20 degrees warrants a 40 percent rating, while favorable angle in full extension, or in slight flexion between 0 and 10 degrees, warrants a 30 percent rating. DC 5262 provides that nonunion of the tibia and fibula with loose motion requiring brace warrants a 40 percent rating. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. B. Knees-Analysis and discussion Initially, as to the right knee, the Board notes that there is sufficient evidence in the record to establish that the Veteran had a TKR on January 12, 2016. See records from Reynolds Army Community Hospital (ACH) dated in April 2016. Under DC 5055, a 100 percent rating is assigned for 1 year following implantation of prosthesis. Thus, a 100 percent rating is assigned as of January 12, 2016, to January 12, 2017. As to the remaining time periods on appeal, for each knee, a review of the salient factual and procedural history is essential. The May 2016 JMR found that the Board, in rating the knees based on limitation of motion, failed to adequately consider whether the Veteran is entitled to additional ratings under DCs 5258 (cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint), 5259 (cartilage, semilunar, removal of, symptomatic), and 5257 (recurrent subluxation or lateral instability). 38 C.F.R. § 4.71a. With respect to whether separate ratings were warranted under DCs 5258 and 5259, the parties agreed that the Board failed to adequately consider the Veteran's symptomatology associated with his bilateral knee meniscectomies and provide a thorough analysis as to whether separate ratings would constitute pyramiding, despite acknowledging diagnostic evidence of dislocated semilunar cartilage in both knees during the appeal period (as contemplated by DC 5258) and that such cartilage was removed by arthroscopic surgery (as contemplated by DC 5259). Specifically, the parties agreed for consideration of symptoms of tenderness over the medial and lateral joint lines bilaterally, hypertrophied knees, crepitus, and mild joint effusion were warranted, as demonstrated by the September 2010, X-ray of the bilateral knees and May 2011 VA Examination. With respect to whether separate ratings were warranted under DC 5257, the parties agreed that the Board failed to adequately consider evidence suggesting subluxation of the right and left knees in the September 2008 VA examination. Specifically, the parties pointed out that in a September 2008 X-ray report, there was evidence of moderate subluxation of the tibia on the femur on the right knee and slight medial subluxation of the femur on the tibia on the left knee. In remanding this matter in 2016, the Board noted that VA may not rate the same symptoms twice, which would constitute impermissible "pyramiding." 38 C.F.R. § 4.14. In determining whether separate disability ratings are warranted, an essential inquiry is whether any of the symptomatology for any service-connected condition is duplicative or overlapping with that of another service-connected condition. Murray v. Shinseki, 24 Vet.App. 420, 423 (2011); Esteban v. Brown, 6 Vet.App. 259, 262 (1994). Accordingly, the Board observed that it could not make the determination of whether rating the symptoms so stated as separate ratings under DCs 5258, 5259, and 5257 would constitute rating overlapping symptoms without an additional medical opinion. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (Board may not make independent medical assessments). As such, a VA examiner's opinion on these matters, addressing the period from August 2006, was requested. The Veteran underwent VA examination in December 2016 by a VA physician who reviewed the record and examined the Veteran. The examiner noted the Veteran's reports of pain due to severe arthritis, with a recent total knee joint replacement on the right side. The Veteran also reported that his left knee continued to hurt as he has severe arthritis of left knee too. He reported he was going to have left-sided knee replacement in 2017. The Veteran specifically denied any knee instability bilaterally. He reported using Tylenol over-the-counter (OTC) as needed at a rate of about once per week. Flare-ups were reported to occur with walking, which aggravates the pain. He uses rest to alleviate these flare ups. Right knee range of motion was flexion 0 to 100 degrees and extension 140 degrees to 0, with no change following repetitive testing. It was reported that range of motion did not contribute to functional loss. There was no pain on examination. But it was noted that pain was evidenced with weight bearing. There was neither localized tenderness or pain on palpation of the joint or associated soft tissue nor crepitus. The examination was considered by the examiner to be medically consistent with the Veteran's statements describing functional loss with repetitive use over time and functional loss during flare-ups. As to the left knee, range of motion was flexion 0 to 90 degrees and extension 140 degrees to 5 degrees, reduced following repetitive testing to flexion 0 to 80 degrees and extension 80 to 7 degrees. It was reported that range of motion did not contribute to functional loss. There was pain on examination but it did not result in or cause functional loss. Pain was evidenced with weight bearing. There was localized tenderness on deep palpation of the joint and crepitus. The examination was considered by the examiner to be medically consistent with the Veteran's statements describing functional loss with repetitive use over time and functional loss during flare-ups. Pain, weakness, fatigue and lack of endurance significantly limited functional ability with repeated use over a period of time as demonstrated in the range of motion changes that occurred following repetition on the examination. Right knee muscle strength was normal at 5/5, left knee strength was 4/5, representing active movement against some resistance. There was no muscle atrophy or ankylosis bilaterally. There was no history of recurrent subluxation or lateral instability bilaterally. (Initially reported as slight on the left, this was clarified in the addendum from this physician-no recurrent subluxation was noted) There was a history of recurrent effusion. Right knee joint testing was not performed as it was not indicated. Left knee joint testing was indicated but not performed due to pain upon testing and manipulation. The Veteran did not have nor had he ever had recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did not have nor had he ever had a meniscus (semilunar cartilage) condition. The residuals of the TKR included pain with reduced range of motion. The surgical scar was not painful or unstable, and did not have a total area equal to or greater than 39 square cm (6 square inches). It measured length 17cm X width .3cm. The Veteran reported that he regularly used a cane and has difficulty climbing stairs and walking more than one block. In a separate December 2016 report, the examiner addressed the remand questions, which were essentially drafted in compliance with the JMR. The following was contained in the report: A. Please consider the Veteran's symptomatology associated with his bilateral knee meniscectomies and dislocated semilunar cartilage. Particular attention is directed to reports of tenderness over the medial and lateral joint lines bilaterally, hypertrophied knees, crepitus, and mild joint effusion in the September 2010 X-ray of the bilateral knees and May 2011 VA Examination. Veterans current symptoms are minimal pain right side since knee replacement, and moderate pain on left side, severity 5/10 on daily basis increasing to 8/10 with activity like walking over 1 block. X-rays dated 2010 indicate DJD both knees with mild effusion. Veteran has had recent exam in 5/2014 after the 2011 exam which states following symptoms, "Veteran complains of severe arthritis of the bilateral knees. He wears bilateral DonJoy braces and is rated for his knees. His tolerance for walking and range of motion has decreased in his estimation since his last exam. Please specify whether the Veteran exhibits cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint, from August 2006 to present (pendency of the appeal). Please opine as to whether these symptoms are manifested as a separate condition. If there is overlap of symptoms with another condition, please explain to the extent the symptoms overlap. It is opinion of this examiner that veteran does not exhibit symptoms affecting right knee since replacement. He cannot remember if he did prior to 2015. Regarding left knee, he denies having any current symptoms of cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint, from August 2006 to present B. Please consider evidence suggesting subluxation of the right and left knees. Specifically, in a September 2008 X-ray report, there was evidence of moderate subluxation of the tibia on the femur on the right knee and slight medial subluxation of the femur on the tibia on the left knee. Veteran has had more recent X-rays in 2015, and MRI knee which does not indicate any subluxation of the femur on the tibia on either knee. More recent x ray dated 9/2015 do not indicate subluxation of the femur on the tibia. Please consider whether the Veteran's bilateral knee disabilities have manifest as recurrent subluxation or lateral instability at any point during the appeals period, from August 2006 to present. If recurrent subluxation or lateral instability is found, please specify if it is severe, moderate, or slight. Please opine as to whether any recurrent subluxation or lateral instability symptoms are manifested as a separate condition. If there is overlap of symptoms with another condition, please explain to the extent the symptoms overlap. It is opinion of this examiner that veteran did not have manifestation of recurrent subluxation or lateral instability at any point during the appeals period, from August 2006 to present, as indicated in dbq. C. Please consider evidence suggesting impairment of the tibia and fibula, for example, the September 2015 VA examination noting bilateral shin splints. Please specify, from August 2006 to present, whether the Veteran's knee condition has manifested as: Nonunion of, with loose motion, requiring brace malunion of with marked knee or ankle disability; malunion of with moderate knee or ankle disability, or malunion of with slight knee or ankle disability. Veteran does not have current diagnosis of shin splints as indicated in the body of exam. It is opinion of this examiner that since August 2006 to present, whether the Veteran's knee condition has manifested as: Nonunion of, with loose motion, requiring brace; malunion of with marked knee or ankle disability; malunion of with moderate knee or ankle disability, or malunion of with slight knee or ankle disability. [Clarified in April 2017 addendum as a negative response]. In an April 2017 addendum, the VA physician clarified that, from August 2006 to present, the Veteran does not appear to have nonunion of tibia and fibula with loose motion, requiring brace, or malunion of with marked knee disability; malunion of with moderate knee or ankle disability, or malunion slight knee or ankle disability. The examiner noted that Veteran's knee diagnosis was DJD bilateral knees, and full information regarding knee condition was covered in the examination report completed in December 2016. In a June 2017 addendum, the VA physician clarified that he inadvertently noted that the Veteran had history of slight recurrent subluxation in December 2016. He clarified that the Veteran does not have recurrent subluxation of the left knee. Following a review of the entirety of the record, the Board finds that the left knee disability warrants not more than the 10 percent rating for painful limited flexion. However, a 10 percent rating for is also warranted for painful limited extension as of the date of claim for increased rating for the left knee. The record is replete with reference to the Veteran's extensive, consistent complaints of pain and symptoms with daily functioning of the left knee. These complaints have been documented throughout the appeal period, and were particularly noted in the most recent VA examination as well as in earlier VA examinations and the Reynolds ACH treatment records. The Board cannot reasonably disassociate his long-standing complaints of left knee pain with the arthritis that contributes to both limited and extension and flexion. Recent cases from the Court reflect that a 10 percent rating may be warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities rated under diagnostic codes containing a 10 percent rating, and the criteria for such a rating can be satisfied with lay and other non-medical evidence. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). The Board finds that these two cases support a separate 10 percent rating, and no higher, based on painful limited left knee extension in this claim. However, the Board finds that a higher rating is not warranted, as the record fails to demonstrate limited range of motion that approaches the levels required for the next higher ratings, extension limited to 15 degrees or flexion limited to 30 degrees. Furthermore, there is no basis to assign a separate compensable rating under DCs 5257, 5258 or 5259, for either knee at any time during the appeal period, as the most recent examination report and addenda reflect no history of recurrent subluxation or lateral instability, and no past or present meniscus (semilunar cartilage) condition. The Board notes the Veteran's assertions to the contrary, and notes the specific instances in the record cited in the JMR, but notes the findings on the most recent examination, and in the addenda. This VA physician in December 2016 conducted an exhaustive and accurate review of the record dating to August 2006, interviewed and examined the Veteran. Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions. Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Where a medical expert has fairly considered all the evidence, his opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion. Wray v. Brown, 7 Vet. App. at 493. The Board does, in fact, adopt the 2016/2017 VA physician's opinion regarding whether the relevant manifestations consistent with compensable ratings under DCs 5257, 5258 and 5259 are present. It finds the opinions well-supported and thorough. The examination is more probative than the assertions of the Veteran and the findings referenced in the JMR. Accordingly the preponderance of the evidence is against assigning separate rating under these DCs for either knee. As to the right knee, prior to January 12, 2016, the Veteran does not meet or approximate the criteria for a rating in excess of 20 percent based on range of motion. He has insufficient limited extension and or flexion. There is no ankylosis or nonunion of the tibia and fibula with loose motion, requiring brace. The treatment record is consistent with the examination record set forth above as to the pertinent rating criteria. The Veteran has not demonstrated the presence of any manifestations that support a higher rating prior to January 12, 2016. From January 13, 2017, forward, the Veteran is assigned a 30 percent rating under DC 5055, which is the minimum rating following TKR. He does not meet or approximate the criteria for a rating in between 30 and 60 percent. There is again no ankylosis, no nonunion of the tibia and fibula with loose motion, requiring brace, and no extension limited to 30 degrees. The treatment record is consistent with the examination record set forth above as to the pertinent rating criteria. Furthermore the preponderance of the evidence is against a finding of chronic residuals consisting of severe painful motion or weakness in the affected extremity to support a 60 percent rating under DC 5055. The record simply does not contain sufficient contentions or objective indicators suggestive of such a degree of severity. Here, the Veteran has noted pain with walking in the 2016 examination report, relieved by rest and Tylenol. However, he did not describe significant pain with the right knee during the examination, and the examiner did not observe severe painful motion or weakness. The Board finds that the record does not demonstrate severe painful motion or weakness in the right knee at any time since January 13, 2017. Moreover, the Bord notes that the record does not suggest that the right knee surgical scar warrants a separate compensable rating, as it is asymptomatic, not painful or tender on objective demonstration, and is of minimal size. See 38 C.F.R. § 4.118, DC 7801-7804 (2008). In conclusion, for the reasons set forth above, for the right knee disability, a rating in excess of 20 percent is denied prior to January 12, 2016, a 100 percent rating for right TKR is assigned from January 12, 2016, and a 30 percent rating is effective from January 13, 2017; a rating in excess of 30 percent is denied from January 13, 2017, forward. Hart v. Mansfield, 21 Vet. App. 505 (2007). For the left knee, a separate 10 percent rating, and no higher, for limited extension is assigned for the entire period of the claim; a higher rating for the left knee based on other than limited extension is denied. Separate ratings under DC's 5257, 5258 and 5259 are denied as to both knees. III. TDIU A. Law and background It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2017). 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 (2017). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2017). The Moore court cited the following language from Timmerman v. Weinberger, 510 F.2d 429 (8th Circuit 1975), in which United States Court of Appeals for the Eighth Circuit addressed unemployability in the Social Security disability context: 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. Moore, 1 Vet. App. at 359 (citing Timmerman at 442). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. 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 non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2016). B. Discussion and Analysis The Veteran's claim for TDIU was filed in August 2014. He filed a second claim June 2015, alleging he last worked full-time May 26, 2015, and became unable to work due to service-connected disabilities June 18, 2015. See VA forms 21-8940 filed in August 2014 and June 2015. The Veteran has multiple service-connected disabilities, including the knee disabilities discussed above. Additional disabilities for which ratings were in effect as of the date he alleges he became unable to work due to service-connected disabilities include: posttraumatic stress disorder (PTSD), right ring finger disability, bilateral pes planus, left foot disability, allergic rhinitis and right ring finger scar. His combined disability rating in June 2015 was 90 percent. In both his TDIU claims, the Veteran consistently reported that he worked for Oklahoma Blood Institute since December 1999. He described his work as inventory and delivery. He reported that he had a college education in the area of business administration. In his August 2014 form, he reported that he was unable to work due to severe problems with painful right hand, joint pain and PTSD. It appears that, although he initially claimed in August 2014 that he could not work as of July 2014, he did in fact continue to work at the Oklahoma Blood Institute, stopping work altogether May 26, 2015. See June 2015 VA form 21-8940. The Board has examined the record and finds that the medical evidence demonstrates the Veteran was in fact significantly limited occupationally due to the combined effects of PTSD and his service-connected orthopedic impairments as of June 18, 2015. The Board will resolve reasonable doubt in favor of the Veteran and find that, as of June 18, 2015, the criteria for TDIU were met. ORDER A rating in excess of 20 percent for the right knee disability is denied prior to January 12, 2016, a 100 percent rating is granted from January 12, 2016, subject to controlling regulations governing the payment of monetary awards, and a rating in excess of 30 percent is denied from January 13, 2017, forward. Separate ratings for left or right knee disability under DC's 5257, 5258 or 5259 are denied. A 10 percent rating, and no higher, for limited extension of the left knee is assigned throughout the period on appeal as to the increased rating claim, subject to controlling regulations governing the payment of monetary awards. A rating in excess of 10 percent for the left knee disability (other than extension) is denied. TDIU is granted as of June 18, 2015, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs