Citation Nr: 1802671 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-09 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased disability rating for degenerative joint disease of the left knee, currently rated as 30 percent disabling. 2. Entitlement to an increased disability rating for degenerative joint disease of the lumbar spine, currently rated as 20 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Alexandra M. Jackson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from January 1977 to April 1977 and from May 1978 to May 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This case was previously remanded by the Board in June 2016. The case has been returned to the Board for review. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) of the Board in December 2015. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2017). However, the VLJ who conducted the December 2015 Board hearing is no longer employed by the Board. In May 2017, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the December 2015 hearing is no longer employed by the Board, and offering another hearing before a different VLJ. The Veteran's representative responded by indicating that the Veteran did not desire another Board hearing, and wanted the Board to consider the case on the evidence of record. In addition to the matters noted above, the Veteran has appealed his claims for entitlement to service connection for hypertension, entitlement to service connection for left hip osteoarthritis, entitlement to service connection for erectile dysfunction, entitlement to service connection for right knee osteoarthritis and denial of entitlement to special monthly compensation based on loss of use. The electronic record indicates that the AOJ is taking action on these issues. Although the matters are within the Board's jurisdiction, they have not been certified for appellate review and the Board will not undertake review of the matters at this time. If the matters are not resolved in the Veteran's favor, the RO will certify the matters to the Board, which will undertake appellate review of the RO's action. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board's jurisdiction is triggered by the timely filing of a notice of disagreement (NOD)); 38 C.F.R. § 19.35 (2017) (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue). FINDINGS OF FACT 1. During the entire rating period on appeal, the Veteran's left knee disability was manifested by pain productive of flexion limited, at its most severe, to 70 degrees, and extension limited, at its most severe, to 0 degrees. 2. For the period from November 17, 2016, the Veteran's left knee disability has been manifested by slight lateral instability. 3. The Veteran's degenerative joint disease of the lumbar spine has been manifested by pain productive of functional impairment and loss more comparable to forward flexion of the thoracolumbar spine greater than 30 degrees. 4. The most probative evidence of record does not reflect that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for left knee degenerative joint disease, on the basis of painful range of motion, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5261 (2017). 2. The criteria for a separate disability rating of 10 percent, and no higher, for left knee disability, on the basis of slight lateral instability, from November 17, 2016, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5257 (2017). 3. The criteria for a higher disability rating for degenerative joint disease of the lumbar spine, rated as 20 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 5242 (2016). 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increase Rating - Degenerative Joint Disease of the Left Knee In this case, the Veteran seeks an increased disability rating in excess of 30 percent for his service-connected left knee disability. The Veteran's claim for an increased rating was received on August 24, 2011. Therefore, the relevant rating period is from August 25, 2010, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400 (o) (2). The Veteran's service connected left knee disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5261, as 30 percent disabling throughout the rating period. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). The record shows that the Veteran has been diagnosed with left knee osteoarthritis. See November 2016 VA examination report. The Veteran's service-connected left knee disability may be rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5257, 5260, and 5261. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, evaluation shall be on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. In the absence of any limitation of motion, a 10 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5010. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.71a, DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Separate ratings may be awarded under Diagnostic Codes 5010 and 5257. See VAOPGCPREC 23-97; VAOPGCPREC 9-98. Separate ratings may be awarded under Diagnostic Codes 5257, 5260, and 5261. See VAOPGCPREC 9-2004. In addition, even if a veteran did not have limitation of motion of the knee meeting the criteria for a compensable rating under DC 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The Veteran was provided a VA knee examination in April 2012. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran stated that his left knee hurts all the time. He reported that he has flare-ups. Upon range-of-motion examination the Veteran had left knee flexion to 115 degrees with objective evidence of pain at 90 degrees. The Veteran's extension was to 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions with no loss of range-of-motion. The Veteran displayed pain on movement that contributes to functional impairment of the left knee after repetitive use. The Veteran was provided a VA knee examination in November 2016. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran stated he has constant pain in his left knee and some days are worse than others but denied having incapacitating pain or inability to get out of bed. The Veteran reported that he does not have flare-ups of the left knee or lower leg. Upon examination, the Veteran was not able to perform left knee flexion or extension since he stated he had severe sharp non radiating pain in his low back while attempting to flex and straighten his leg. The VA examiner noted diffuse peripatellar tenderness with light palpation. There was no objective evidence of crepitus. Upon joint stability testing the Veteran displayed slight left lateral instability. The VA examiner noted that the Veteran's left knee disability impacts his ability to perform occupational tasks due to pain, weakness, fatigability and incoordination in prolonged or repetitive heavy to moderate conditions. However, the Veteran's disability would not prevent sedentary physical activities. The Veteran was provided another VA knee examination in January 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran did not report flare-ups. Upon examination, the Veteran had range-of-motion of the left knee with flexion to 70 degrees and extension to 0 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss of range-of-motion. Additionally, pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no evidence of localized tenderness or pain on palpation. The VA examiner noted that the Veteran's service-connected left knee disability caused disturbances of locomotion and interfered with standing. On joint stability testing there was no history of recurrent subluxation or lateral instability and no instability was displayed during testing. The VA examiner stated there was evidence of pain on passive range-of-motion and no pain on non-weight bearing. During the rating period on appeal, the Veteran's left knee disability was manifested by pain productive of flexion limited, at its most severe, to 70 degrees. In addition, for the entire rating period on appeal the Veteran had normal extension of the left knee to 0 degrees. Such limitation does not warrant a rating in excess of 30 percent under Diagnostic Codes 5260 and 5261. At the November 2016 VA examination, the VA examiner noted that the Veteran had slight left knee lateral instability. At the January 2017 VA examination the VA examiner noted the Veteran did not demonstrate lateral instability. However, the VA examiner also noted that the record does not demonstrate a history of lateral instability even though the November 2016 VA examination noted slight left knee lateral instability. Therefore, the Board resolves doubt in the Veteran's favor and finds that his left knee condition was manifested by slight lateral instability from November 17, 2016. Such limitation warrants an additional separate disability rating of 10 percent, and no higher, under Diagnostic Code 5257. As such, the Veteran was entitled to a separate disability rating of 10 percent, and no higher, under Diagnostic Code 5257 from November 17, 2016. The Board has considered whether the Veteran is entitled to a higher or separate rating under the other Diagnostic Codes related to the disabilities of the knees and legs. However, there is no indication of ankylosis of the left knee, dislocation or removal of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. Therefore, no higher or separate rating is warranted under those diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263. The Board has further considered whether the Veteran is entitled to higher ratings based on additional functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca v. Brown, 8 Vet. App. 202 (1995), Burton v. Shinseki, 25 Vet. App. 1 (2011). At the April 2012 VA examination, the Veteran reported flare-ups in his left knee symptoms. He did not provide an estimate in the increase in severity of range-of-motion during the flare-ups. However, the Veteran's report of left knee symptom flare-ups is not reflected in the other medical evidence of record. At both the November 2016 and January 2017 VA examinations the Veteran did not report flare-ups of his left knee. In addition, the Veteran did not demonstrate additional functional loss upon repetitive use testing at the January 2017 VA examination, and the VA examiner did not opine that the Veteran would have additional functional loss upon repetitive use over time. Thus, the record does not show that the Veteran is additionally limited by pain, fatigability, incoordination, pain on movement, or weakness during flare-ups or on repetitive use over time such that higher ratings for the left knee were warranted at any time during the rating period. The Board finds that the Veteran's pain and any functional loss are encompassed by the ratings herein provided under DCs 5010, 5257, and 5261 for the left knee condition. Therefore, higher ratings were not warranted at any time during the rating period under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, and DeLuca, 8 Vet. App. 202. The Board acknowledges the Veteran's contentions that he is entitled to higher ratings for the service-connected left knee disability. The Veteran is competent to report symptoms such as pain and limited motion. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is also credible in his belief that he is entitled to higher ratings. However, the Veteran is not competent to offer a medical opinion, for example, as to the relative severity of his service-connected left knee disability per the rating schedule Diagnostic Codes criteria, as doing so requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). Therefore, in assigning disability ratings, the Board relies upon the competent, probative opinions provided by the medical professionals and on the objective medical evidence of record. The medical professionals' opinions are probative because the professionals have the knowledge and expertise necessary to evaluate disabilities of the musculoskeletal system, and because they are based on a review of the record or an accurate understanding of the Veteran's medical history, and on an in-person examination of the Veteran. They are thorough and provide enough detail to rate the Veteran under the relevant rating criteria. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). When considered with the relevant rating criteria, the probative evidence supports a finding that a rating in excess of 30 percent was not warranted for the left knee condition under Diagnostic Code 5261 at any time during the rating period. The probative evidence further supports a finding that a separate rating of 10 percent, and no higher, is warranted under Diagnostic Code 5257 for the period from November 17, 2016. The Board therefore finds that the criteria for a rating in excess of 30 percent for the left knee disability under Diagnostic Codes 5010 and 5261 were not met at any time during the rating period. However, the Board finds that the criteria for a separate rating of 10 percent, and no higher, under Diagnostic Code 5257 have been met from November 17, 2016. To the extent the Veteran seeks ratings higher than or in addition to those granted herein, the preponderance of the evidence is against the assignment of higher or additional ratings, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating - Degenerative Joint Disease of the Lumbar Spine In this case, the Veteran seeks an increased disability rating in excess of 20 percent for his service-connected lumbar spine disability. The Veteran's claim for an increased rating was received on August 24, 2011. Therefore, the relevant rating period is from August 25, 2010, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400 (o) (2). The Veteran's service-connected lumbar spine degenerative joint disease is currently rated 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5242, pertaining to degenerative arthritis of the spine. Diagnostic Code 5242 directs that degenerative arthritis of the spine be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, the next higher evaluation, a 40 percent rating, is assigned for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. The medical evidence of record shows that the Veteran complains of back pain and unleveled walking. The Veteran denies flare-ups. However, the clinical findings of record do not warrant the assignment of a disability rating in excess of 20 percent. The clinical records and VA medical examination reports do not show flexion limited to 30 degrees or less, or any findings of ankylosis to warrant the assignment of a disability rating in excess of 20 percent. The April 2012 VA medical examination report shows a finding of 75 degrees of forward flexion with objective painful motion beginning at 50 degrees. He was able to perform repetitive-use testing with three repetitions with no additional loss of range-of-motion. The November 2016 VA examination report shows that forward flexion ended at 40 degrees. He was able to perform repetitive-use testing with three repetitions with no additional loss of range-of-motion. There was no ankylosis of the spine or intervertebral disc syndrome (IVDS). Therefore, the clinical findings of record do not support a rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability. The Board considered whether a disability rating in excess of 20 percent would be warranted on the basis of additional functional impairment and loss pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the assigned 20 percent disability rating contemplates the Veteran's disability picture, to include functional impairment and loss due to pain, flare-ups and repetitive use. In this respect, the April 2012 VA examination report shows that the Veteran was able to complete repetitive testing and post-test forward flexion ended at 75 degrees. While there was pain on movement, there was no additional limitation in range-of-motion after repetitive testing. The November 2016 VA examination report shows that the Veteran was able to complete repetitive testing and post-test forward flexion ended at 40 degrees. While there was pain on movement, there was no additional limitation in range-of-motion after repetitive testing. Therefore, a higher rating was not warranted at any time during the rating period under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, and DeLuca, 8 Vet. App. 202. The Board has taken into account the Veteran's statements, testimony, and symptoms recorded in the medical treatment records and VA examination reports concerning his functional limitations, consisting of sharp or dull pain in the low back that worsens with weight bearing activity of ten to fifteen minute duration. However, even considering the Veteran's reports of his symptoms, the competent and probative clinical findings do not indicate that the Veteran's disability, even when considering any such additional functional impairment and loss, has been shown to be comparable to flexion limited to 30 degrees or less, or ankylosis of the spine. See Mitchell, supra. The clinical findings do not show that the Veteran's functional impairment and loss is to the degree that it is more comparable to flexion limited to 30 degrees or less or ankylosis of the spine. Therefore, a rating in excess of 20 percent is not warranted. The Board also considered whether the Veteran is entitled to a rating in excess of 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5243, IVDS. At no time during the rating period was the Veteran entitled to a higher rating under Diagnostic Code 5243 because the evidence does not show that he has experienced any incapacitating episodes due to IVDS as defined in 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. In adjudicating a claim, the competence and credibility of the Veteran and other lay persons must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Again, as detailed above, the statements have been considered and the Board finds that the statements are outweighed by the clinical findings of record. The Board assigns greater probative value to the clinical findings in the VA examination reports and clinical records that were recorded following physical examinations of the Veteran, and based on the medical expertise of the examining physicians. These are more probative than the Veteran's assertions requesting a higher rating. Indeed, there is no indication that the Veteran has the requisite medical expertise or knowledge to determine how far he can flex his spine or if he has ankylosis, pursuant to Diagnostic Code criteria, which has not been shown by the clinical evidence of record. In this regard, VA regulations specifically state that a goniometer is used to measure limitation of motion. 38 C.F.R. § 4.46. Accordingly, a higher rating is not warranted. In sum, there is no identifiable period that would warrant a rating in excess of 20 percent for the Veteran's lumbar spine disability. Staged ratings are not appropriate. See Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In light of the above, the preponderance of the evidence is against the claim for a rating in excess of 20 percent for service-connected lumbar spine degenerative joint disease. The benefit-of-the-doubt doctrine does not apply and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to a TDIU The Veteran seeks entitlement to a TDIU. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In this case, the Veteran has indicated that he had to stop working as a cook in September 2002 due to his service-connected left knee disability and service-connected low back disability. See VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability received September 2016. The issue of entitlement to a TDIU has been raised and is part and parcel of the appeal for an increased rating for the service-connected left knee and service-connected lumbar spine disabilities. Therefore, the relevant appeal period for the issue is from August 25, 2010, one year prior to receipt of the claim. See 38 C.F.R. § 3.400 (o) (2). For the entire rating period on appeal the Veteran was service connected for degenerative joint disease of the left knee, rated as 30 percent disabling; and degenerative joint disease of the lumbar spine, rated as 20 percent disabling. In addition, from November 17, 2016, the Veteran has a separate 10 percent rating for his service-connected left knee disability under Diagnostic Code 5257. His combined rating for compensation was 40 percent disabling prior to November 17, 2016 and 50 percent disabling from November 17, 2016. Accordingly, the schedular percentage requirements for a TDIU were not met at any time during the rating period on appeal, as the Veteran did not have a single service-connected disability rated as 60 percent disabling or a combined rating of 70 percent during that period. See 38 C.F.R. § 4.16 (a). Nevertheless, the Board will consider whether the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation such that referral for consideration of entitlement to a TDIU on an extra-schedular basis is warranted under 38 C.F.R. § 4.16 (b). The Veteran was last employed as a cook in September 2002. He has a high school diploma with three years of college and an additional eighteen months of business management training or education. He has asserted that his service-connected lumbar spine disability and service-connected left knee disability prevent him from securing or following a substantially gainful occupation. See VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received September 2016. The Veteran underwent a VA knee and VA back examination in April 2012. The VA examiner noted that the Veteran's service-connected lumbar spine disability would limit occupations where repetitive bending and lifting are required. The VA examiner further noted that the Veteran's major limitation in work is due to his obesity and that if he lost weight he likely would be able to work with his current lumbar spine condition. The Veteran was provided a VA back examination in November 2016. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted that the Veteran has sharp or dull pain in his low back that worsens with weight bearing activity of ten to fifteen minute duration. The VA examiner opined that pain, weakness, fatigability and incoordination associated with the Veteran's service-connected lumbar spine disability could significantly limit functional ability in prolonged or repetitive heavy to moderate, but not sedentary activities. The Veteran was provided a VA knee examination in November 2016. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner opined that pain, weakness, fatigability and incoordination associated with the Veteran's service-connected left knee disability could significantly limit functional ability in prolonged or repetitive heavy to moderate, but not sedentary physical activities. The Veteran was provided a VA medical opinion summary in November 2016. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner opined that there are no findings that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. In view of the above, the Board finds that, although the probative evidence of record shows that the Veteran likely is unable to secure or follow an occupation involving prolonged or repetitive heavy to moderate physical activities due to his service-connected left knee and service-connected lumbar spine disabilities, it does not show that it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation consistent with his educational and occupational experiences solely as a result of his service-connected disabilities. In arriving at this conclusion, the Board recognizes that the Veteran's service-connected disabilities have an impact on his occupational functioning. In that regard, the evidence clearly shows that the Veteran's service-connected disabilities limit his ability to perform physical activity. Furthermore, the Veteran presented competent and credible lay witness testimony that his activities of daily living are limited by his service-connected disabilities. See Layno, 6 Vet. App. at 470. The Board finds the statements from the Veteran credible as to the Veteran's inability to perform a full range of work inasmuch as they are consistent with the other evidence of record. However, the Board finds that the Veteran's statements are inconsistent with the other evidence of record, which reflect a level of disability that does not render the Veteran unable to secure or follow a substantially gainful occupation. Therefore, the Board affords little probative value to the lay witness statements from the Veteran inasmuch as they assert that the Veteran is unemployable due to his service-connected left knee and lumbar spine. The Board instead affords great probative weight to the opinions from the VA examiners. The April 2012 VA examiner examined the Veteran, reviewed his medical records, and provided statements as to the relative level of severity of the Veteran's lumbar spine disability. The VA examiner opined that the Veteran's lumbar spine disability would limit the Veteran's ability to perform repetitive bending and lifting. The November 2016 VA examiner opined that the Veteran's left knee and lumbar spine disabilities would limit his abilities to perform prolonged or repetitive heavy to moderate physical activities. The Board affords probative weight to these opinions because they were based on and are consistent with the evidence of record. See Nieves-Rodriguez, 22 Vet. App. 295 (2008). Accordingly, due to his service-connected left knee and lumbar spine disabilities, the Veteran is limited to positions that do not involve prolonged or repetitive heavy to moderate physical activities. The Board concludes that, as the Veteran is able to perform essentially a reduced range of work he is not unable to secure or follow a substantially gainful occupation due solely to his service-connected left knee and lumbar spine disabilities. In determining whether the Veteran is entitled to a TDIU the Board has considered the Veteran's level of education, special training, and previous work experience. See 38 C.F.R. § 4.16. As noted above, the Veteran has indicated that he has three years of college education and nearly two years additional training in business management. The Board finds that the Veteran's level of education does not preclude his ability to perform a reduced range of work, not involving prolonged or repetitive heavy to moderate physical activities. In view of the foregoing, the most probative evidence of record does not establish that it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation consistent with his educational and occupational experience, due solely to his service-connected left knee and lumbar spine disabilities. The Veteran's service-connected left knee and lumbar spine disabilities limit him to occupations not involving prolonged or repetitive heavy to moderate physical activities. As the preponderance of the evidence is against entitlement to a TDIU the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, a TDIU is not warranted. ORDER Entitlement to a disability rating in excess of 30 percent for the left knee disability, on the basis of painful motion, is denied. Entitlement to a separate disability rating of 10 percent, and no higher, for the left knee disability, on the basis of slight lateral instability, from November 17, 2016, is granted. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine is denied. Entitlement to a TDIU is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs