Citation Nr: 18144745 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-41 388A DATE: October 25, 2018 ORDER Entitlement to service connection for peripheral neuropathy is denied. Entitlement to an initial 10 percent rating for left knee scars is granted. Entitlement to an effective date earlier than March 22, 2016, for the award of service connection for left knee scars is denied. Entitlement to a rating in excess of 10 percent for degenerative osteoarthritis of the left knee is denied. Entitlement to an initial rating in excess of 10 percent for left knee instability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy did not manifest in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, and was not otherwise etiologically related to his active service. 2. Resolving reasonable doubt in the Veteran’s favor, for the relevant period on appeal, the left knee scars are shown to be painful. 3. There are no formal or informal claims submitted earlier than March 22, 2016, for entitlement to service connection for left knee scars. 4. For the entire period of appeal, the left knee disability is manifested by pain, at most slight instability, and flexion limited to no more than 120 degrees. The left knee disability does not show evidence of ankylosis, dislocated semilunar cartilage, extension limited to at least 5 degrees, impairment of the tibia and fibula, or genu recurvatum. 5. The Veteran does not meet the minimum threshold requirements for a TDIU on a schedular basis; his service-connected left knee disabilities are not sufficient to preclude all forms of substantially gainful employment consistent with his education and occupational background at any time during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2018). 2. For the relevant period on appeal, the criteria for an initial 10 percent rating for the left knee scars have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2018). 3. The criteria for entitlement to an effective date earlier than March 22, 2016, for the award of service connection for left knee scars have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 4. The criteria for the assignment of a rating in excess of 10 percent for degenerative osteoarthritis of the left knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5010-5260 (2018). 5. The criteria for the assignment of a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5257 (2018). 6. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to August 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2012 and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office. The Veteran provided testimony at a July 2018 Board video conference hearing before the undersigned. A transcript of the hearing is of record. Duties to Notify and Assist Regarding the left knee osteoarthritis increased rating, peripheral neuropathy service connection, and TDIU claims, VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in June 2011, July 2011, and March 2016. Regarding the initial increased rating claims for left knee scars and left knee instability as well as the earlier effective date claim for left knee scars, service connection for these claims has been granted and the initial disability ratings and effective dates have been assigned. In such cases, the intended purpose of the VCAA notice has been fulfilled and no additional notice is required as to such downstream issues. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board acknowledges that the Veteran has not been provided a VA examination for his peripheral neuropathy. VA is not, however, obligated to provide the Veteran with an examination unless there is competent and credible evidence of a disability, and an indication that the claimed disabilities may be related to active duty service. See 38 U.S.C. § 5103A(d); Wells v. Principi, 326 F.3d. 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the evidence of record, there is no competent and credible evidence that exists to support entitlement to service connection for the peripheral neuropathy claim. Consequently, the Board finds that VA examination for this disability is not warranted. Findings or opinions from a VA examination would not be relevant to the Veteran’s earlier effective date claim. Thus, an examination for this claim is not warranted. Adequate VA examinations have been provided for the increased rating and TDIU claims. Accordingly, the Board finds that VA’s duty to assist has been met. Earlier Effective Date Entitlement to an effective date earlier than March 22, 2016, for the award of service connection for left knee scars The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an award of service connection is based upon a variety of factors, including date of claim, date entitlement is shown, and finality of prior decisions. See, e.g., Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that “the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA”). Congress has provided that, unless specifically provided otherwise, the effective date of an award based on an original claim for service connection “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). It further provides an exception to the general rule if an application for disability compensation is received within one year from discharge or release from service, the effective date of an award of disability compensation shall be the day following the date of the Veteran’s discharge or release from service. 38 U.S.C. § 5110(b)(1). In an August 2016 rating decision, service connection was granted for left knee scars as secondary to the service-connected left knee disability based on a finding at the April 2016 VA examination indicating the Veteran had residual scars from his prior left knee surgeries. An effective date of March 22, 2016 was assigned as that was the date of the left knee increased-rating claim for which VA subsequently requested the April 2016 VA examination. The Veteran argues that an earlier effective date is warranted because VA failed to address these scars prior to their identification at the VA examination in 2016. Upon careful review of the record, the Board does not see a communication in the record requesting service connection for left knee scars, or any intention to file for service connection for such scars on the left knee that was received by VA prior to March 22, 2016. The Board notes that during the July 2018 Board hearing, the Veteran’s attorney also admitted that he did not see a specific application for the scars prior to March 2016, and the Veteran reported that he did not remember putting in a specific claim for his left knee scars. Therefore, under the law, March 22, 2016 is the earliest effective date for service connection for the left knee scars that can be granted. Congress and VA have established the laws and regulations governing the assignment of effective dates, which clearly set forth the provisions for what effective date for the grant of service connection may be assigned. The Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. In the present case, those laws and regulations prohibit the assignment of an effective date earlier than March 22, 2016. There is no doubt to be resolved, and the claim for an earlier effective date for the award of service connection for left knee scars must be denied. Service Connection Entitlement to service connection for peripheral neuropathy Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). When aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is diagnosed with peripheral neuropathy. His STRs do not show that it was diagnosed during service nor complaints of or treatment for the disability. His May 1984 separation report of medical examination noted the Veteran’s neurologic testing was normal on clinical evaluation. His May 1984 separation report of medical history noted the Veteran denied a history of neuritis, foot trouble, or paralysis. The Veteran was not provided a VA examination for an opinion on whether peripheral neuropathy is related to service, but the Board finds the elements of McLendon have not been met such that an examination is required to decide this claim. Id. There is simply nothing in the record to suggest a relationship to service. The Veteran has not made any clear assertions as to how his peripheral neuropathy is related to his service. There is no probative evidence that indicates there may be a relationship between peripheral neuropathy and his service; therefore, a VA examination is not required. The Board further notes that medical providers have associated the Veteran’s peripheral neuropathy to a low back disability. See July 2011 Compass Imaging Lumbar Report. However, the Veteran is not service-connected for a low back disability. Accordingly, based on the available evidence, service connection for peripheral neuropathy is denied. The record does not show peripheral neuropathy symptoms until in or around 2009, over 20 years after separation from service. During the July 2018 Board hearing, the Veteran reported that he did not experience symptoms until 2009 and denied being diagnosed with or experiencing symptoms of peripheral neuropathy during active service. The Veteran also indicated during the Board hearing that medical providers have not related his peripheral neuropathy to his active service. There has been no allegation of any injury or illness in service that caused his current peripheral neuropathy. The Veteran has made no other indication of how he believes it is related to service. The preponderance of the evidence weighs against this claim. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. In deciding this appeal, VA has specifically considered whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran’s appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Entitlement to an initial compensable rating for left knee scars In the August 2016 rating decision, the Veteran was assigned a separate noncompensable (0 percent) rating for service-connected left knee scars, effective March 22, 2016. See 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7805 provides that scars, other (including linear scars) and other effects of scars be evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 and that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 be evaluated under an appropriate Diagnostic Code. See 38 C.F.R. § 4.118. At the outset, the Board notes that Diagnostic Codes 7800 (scar(s) of the head, face, or neck), 7801 (scar(s) not of the head, face, or neck that are deep and nonlinear), and 7802 (scar(s) not of the head, face, or neck that are superficial and nonlinear) are not applicable in this case. In a June 2011 VA examination, the examiner noted two linear, superficial, non-tender scars on the left knee, one on the medial left knee that was 10 centimeters by 0.3 centimeters and another on the anterior left knee below meniscus that was three centimeters by 0.3 centimeters. The examiner noted these scars caused no limitation of motion or function. In an October 2014 VA examination, the examiner noted the Veteran’s left knee scars were not painful, unstable, nor was the total area of all related scars greater than 39 square centimeters. In an April 2016 VA examination, the examiner noted two scars on the left knee, one on the medial left knee that was 12 centimeters by 1 centimeters and another on the anterior/inferior patella that was four centimeters by 0.1 centimeters, and the scars were neither painful nor unstable. The examiner noted the Veteran’s scars did not have a total area equal to or greater than 39 square centimeters. An April 2016 VA treatment record noted the Veteran’s left knee surgical scar had tenderness on range of motion. In a March 2018 VA examination, the examiner noted two scars on the left knee, one on the medial left knee that was 12 centimeters by 0.5 centimeters and another on the patella left knee that was three centimeters by 0.1 centimeters, and the scars were neither painful nor unstable. The examiner noted the Veteran’s scars did not have a total area equal to or greater than 39 square centimeters. During the July 2018 Board hearing, the Veteran testified that his left knee scars have been numb since initial surgery and that they caused him pain, especially when he was receiving injections. The Board finds that the Veteran has provided competent and credible evidence, such as his reports in the April 2016 VA treatment record and during the July 2018 hearing, that his left knee scars have been painful throughout the entire rating period on appeal. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge, such as pain). The Board resolves reasonable doubt in his favor by finding that the Veteran’s left knee scars have been painful or tender during the appeal period. Thus, with regard to applying the diagnostic criteria in effect at the time of the Veteran’s claim, a 10 percent disability rating is warranted under DC 7804. No higher evaluation, however, is warranted. Throughout the entire appeal period, as the Veteran’s scars are not deep, a rating in excess of 10 percent is not warranted under DC 7801. Consideration under DC 7802 is of no benefit to the Veteran as the maximum rating allowed under that diagnostic code is 10 percent. As the Veteran’s left knee scars do not involve three or more scars, a rating in excess of 10 percent is not warranted under DC 7804. As for the revised DC 7805, the Veteran’s scars have been evaluated under Diagnostic Code 7804, and there are no other disabling effects to be considered. The rating criteria for skin disabilities were revised effective August 13, 2018. The provisions of DC 7804 did not change. DCs 7801 and 7802 do not provide a basis for an increased rating. DC 7805, as noted above, does also not provide a basis for an increased or additional rating, as there are no other disabling effects of the scars. Entitlement to a rating in excess of 10 percent for degenerative osteoarthritis of the left knee and to an initial rating in excess of 10 percent for left knee instability Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Under Diagnostic Code 5256, ankylosis of the knee, a 30 percent rating is warranted for knee ankylosis in a favorable angle in full extension, or in slight flexion between zero degrees and 10 degrees. A 40 percent rating is provided for knee ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is provided for knee ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is provided for knee ankylosis that is extremely unfavorable, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Under Diagnostic Code 5257 (other impairment of the knee), a 20 percent evaluation requires moderate recurrent subluxation or lateral instability. A 30 percent evaluation requires severe recurrent subluxation or lateral instability. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of “locking”, pain and effusion into the joint. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, a 10 percent rating is assigned for symptomatic removal of symptomatic semilunar cartilage. Semilunar cartilage is synonymous with the meniscus. Diagnostic Codes 5260 and 5261 are utilized to rate limitation of flexion and extension of the knee joint. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, limitation of flexion to 30 degrees warrants a 20 percent evaluation and limitation of flexion to 15 degrees warrants a 30 percent evaluation, the highest schedular evaluation under this diagnostic code. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of extension to 15 degrees warrants a 20 percent evaluation, and limitation of extension to 20 degrees warrants a 30 percent evaluation. Limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation, the highest schedular evaluation under this diagnostic code. 38 C.F.R. § 4.71a. The Schedule provides that the normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. VA’s General Counsel has interpreted that a veteran who has arthritis and instability of the knee could receive separate ratings under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97. In VAOPGCPREC 9-98, the VA General Counsel further explained that, when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. In VAOPGCPREC 9-2004, the VA General Counsel held that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran asserts that higher disability ratings are warranted for his left knee disabilities. With regard to the history of the disabilities at issue, service connection for degenerative osteoarthritis of the left knee was granted in a January 2010 rating decision and a 100 percent rating was assigned from August 17, 2009 and 10 percent from November 1, 2009 under Diagnostic Codes 5260-5010. A February 2010 rating decision denied entitlement to increased rating for the left knee disability. The Veteran submitted his current claim for an increased rating for left knee disability in June 2011. A November 2012 rating decision continued the 10 percent rating for the degenerative osteoarthritis of the left knee but granted service connection for left knee instability and a separate 10 percent disability rating was assigned from June 16, 2011 under Diagnostic Code 5257. In a May 2010 VA treatment record, the Veteran reported that he initially had surgery while he was in the Air Force in 1981 and that he had a little trouble with the left knee intermittently after that. He reported that he did pretty well until 2003 when he was doing leg presses and heard a “pop” in his left knee and had sudden pain. He stated he had arthroscopic surgery after that and the knee was “cleaned out.” He reported that his left knee did not get better after the operation and he continued to have the same pain in the left knee. He had a third operation, a valgus high tibial osteotomy, about a year and a half prior but stated he did not get better after the surgery. He stated that he was bow-legged before the operation and after, his leg was straight. He stated his pain did not improve and may have gotten worse. He reported the pain was aggravated by standing and walking, with patellar crepitation. He stated his left knee gave way occasionally but had no locking and no feeling of abnormal motion in the knee. The provider noted that examination of the left knee revealed healed surgical scars about the knee, no effusion, some quadriceps atrophy, and full range of motion of the knee with moderate subpatellar crepitation. The provider noted negative McMurray maneuver. In a June 2011 VA examination, the examiner noted the Veteran was employed as an assistant manager at Walmart. The Veteran stated that he had to make rounds at the store and had increased pain in his left knee daily. The Veteran stated he had a constant, throbbing, burning sensation in his left knee that was unstable with increased stiffness, swelling, and weakness. The Veteran reported that his knee would buckle and he had to catch himself daily throughout the day with sitting or standing for long periods of time. He reported use of knee brace and cane. The examiner noted there were no reported effects on activities of daily living. The Veteran described his daily flare-ups to be sharp to dull, throbbing, burning pain around the total left knee. The Veteran reported use of pain medication in the last 12 months. The examiner noted the Veteran’s limp in the left lower extremity. The examiner noted some loss of tone in the left quadricep and left gastrocnemius. On range of motion testing, the examiner noted the Veteran’s left knee had flexion to 140 degrees and to 120 degrees with pain, extension full at 0 degrees and to 10 degrees with pain. The examiner noted the range of motion was limited by pain and weakness to the left knee and that there was mild laxity noted to medial and lateral collateral ligament, negative McMurray, and slight left knee instability. A July 2011 private treatment record from Orthopedic Surgery and Sports Injuries noted the Veteran worked 12-hour days and that his knee hurt a lot when he was on his feet. The provider noted there was medial crepitus and mild quad atrophy but good stability. In an August 2011 private treatment record from Bienville Orthopaedic Specialists, the Veteran reported that none of his history of four surgeries have provided relief and he complained of constant severe pain described as sharp, achy, and dull pains. The Veteran reported working for Walmart. He reported he was the assistant manager at Walmart, worked four days on and four days off for 12-hour shifts, and stated that the four days he worked, he had severe pain in his left knee. However, he stated that the four days he did not work, he did not have that much pain. He reported that the pain woke him from sleep, kept him from going to sleep, that his walking tolerance was restricted, and that although he could be on his feet all day, it was painful. The provider noted that he was not currently on prescribed pain medications but has had cortisone shots that have helped him some for the pain. The provider noted he wore an elastic knee sleeve. On range of motion examination, the left knee had flexion to 125 degrees and extension to 8 degrees. The provider noted that the patella medial and lateral facet was trace, effusion was 0, lateral and medial joint lines were 1+, valgus and varus at 30 degrees flexion had no instability, Lachman was negative, and patellofemoral crepitation was 1+. September 2011, October 2011, November 2011, January 2012, February 2012, April 2012, and June 2012 private treatment records from SunCoast Pain Management (SCPM) noted crepitus and tenderness in the left knee, with no gross swelling. The records noted that the Veteran was finding it difficult to work due to the pain, may consider an early retirement since he had more pain at work, and could not stand. The record noted the Veteran only took pain medication on the days he worked. An April 2012 private treatment record from SCPM noted that not walking or standing made the Veteran’s left knee symptoms better and that walking or standing made the symptoms worse. An August 2012 private treatment record from SCPM noted the Veteran’s reports that his left knee pain did not radiate and he characterized symptoms as aching, constant, excruciating, dull, heavy, intense, numbing, severe, sharp, and unbearable. The Veteran reported that the pain worsened with cold, dampness, fatigue, movement, physical activity, pressure, sitting, standing, and weather changes. He reported some pain relief with lying down, massage, and rest. An April 2013 private treatment record from SCPM noted the Veteran continued to struggle with knee pain, continued to take pain medication, and continued to work. The Veteran reported that his left knee pain did not radiate and characterized symptoms as aching, annoying, constant, excruciating, dull, heavy, intense, numbing, severe, sharp, stabbing, and unbearable. The Veteran reported that the pain worsened with cold, dampness, fatigue, movement, physical activity, pressure, sitting, standing, and weather changes. He reported some pain relief with lying down and rest. He reported decrease in pain with the use of pain medications. The provider noted the Veteran’s activities of daily living were not affected by pain medications. A July 2013 private treatment record from SCPM noted the Veteran had been working more and he reported that his knee pain was nearly unbearable. The Veteran reported that it did not radiate. An April 2014 private treatment record from SCPM noted the Veteran had been working for nine days straight and that his knee swelled and hurt. He reported that he had to take pain medication. He reported some pain relief with lying down, massage, and rest. A May 2014 private treatment record from SCPM noted the Veteran did well after a knee arthroscopy but once he started working a lot at Walmart and his activity increased, he started having a lot of problems. On physical examination, the provider noted the Veteran’s left knee had well healed incisions, relatively normal alignment, no ligamentous instability, medial joint line tenderness, patellofemoral crepitus, normal stability, and normal strength. In an October 2014 VA treatment record, the Veteran reported that standing more than an hour or ambulating more than one block caused increase in pain. He reported that for pain relief, he stopped activity and took pain medications. On range of motion testing of the left knee, the examiner noted flexion to 125 degrees with no objective evidence of painful motion and no limitation of extension with no objective evidence of painful motion. The examiner noted that the range of motion was affected by effort and hypersensitivity. On repetitive use testing with three repetitions, there was no additional limitation of range of motion in the left knee or any functional loss or functional impairment. The examiner noted there was tenderness or pain to palpation for joint line or soft tissues in the left knee, normal muscle strength, and that the left knee was normal on joint stability testing, to include anterior, posterior, and medial-lateral instability testing. The examiner noted there was no evidence or history of patellar subluxation or dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, any meniscal conditions or surgical procedures for a meniscal condition, and total knee joint replacement. The examiner noted the Veteran has had four surgeries on his left knee and the last one was an osteotomy in 2009. The examiner noted the Veteran did not have any residual signs or symptoms due to these past surgeries. The examiner noted the Veteran’s regular use of a brace for the left knee and noted the Veteran’s left knee disability did not impact his ability to work. In an April 2016 VA examination, the Veteran complained of pain beneath the patellar tendon and on the medial and lateral aspect of the left knee. The examiner noted there were no complaints of swelling or locking but that the Veteran reported episodic buckling of the left knee. The examiner noted the Veteran was receiving injections with relief lasting for a few weeks. The Veteran described flare-ups as increased intense pain with weather changes. Regarding function loss or functional impairment, the Veteran reported he was able at most to stand for two hours, walk 100 yards, and was unable to kneel on the left knee. He reported the unlimited ability to sit. The examiner noted the Veteran was unemployed and last worked at Walmart in February 2015. On range of motion testing during the April 2016 VA examination, the Veteran had flexion to 120 degrees and full extension to 0 degrees. The examiner noted the range of motion itself did not contribute to functional loss, there was no pain noted on examination, and there was no evidence of pain with weight bearing. The examiner noted the medial aspect of left knee was painful to palpation and there was objective evidence of crepitus. The examiner noted the Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. The examiner noted the examination was not being conducted during a flare-up and indicated that pain, weakness, fatiguability or incoordination would not significantly limit functional ability with flare-ups in the left knee. The examiner noted the Veteran had normal muscle strength, no ankylosis, and no muscle atrophy related to the left knee. On joint stability testing, the examiner noted there was no history of recurrent subluxation or lateral instability in the left knee and no history of recurrent effusion. The examiner noted the left knee was normal on joint stability testing, to include anterior, posterior, medial, and lateral instability testing. The examiner noted there was no evidence or history medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or any meniscus conditions. The examiner noted the Veteran has had four surgeries on his left knee and the last one was an osteotomy in 2009. The examiner noted the Veteran did not have any residual signs or symptoms due to these past surgeries. The examiner noted the Veteran’s regular use of a brace for the left knee and noted the Veteran’s left knee disability did not impact his ability to perform any type of occupational task. In a November 2016 VA treatment record, the Veteran reported constant aching in his knees that was alleviated by resting and staying off his feet. He reported aggravating factors were walking and doing too much. A September 2017 VA treatment record noted the Veteran was seen for a follow up of an amino fix injection that was beginning to wear off. On examination, the provider noted the Veteran ambulated independently with no assistive device, had some varus deformities of bilateral knees, and crepitus was noted. On range of motion testing, the provider noted 0 degrees to 120 degrees of extension and flexion respectively. A November 2017 VA treatment record noted the Veteran was seen for a follow up of an amino fix injection and noted that on examination, the Veteran had slightly improved active range of motion with no limitations of locking or instability. The provider noted the Veteran was ambulating independently with no assistive device with a normal station and gait. In a March 2018 VA examination, the examiner noted degenerative arthritis in the left knee. The Veteran reported constant pain in his left knee and stated the pain level depended on his activities. He stated he had no further surgery since 2009 but was followed by the orthopedic clinic at Biloxi VA for amino fix injections. He reported that his most recent injection was in March 2018. He reported that he no longer was followed by pain management and denied the use of narcotics. He reported cold weather increased his knee pain. The Veteran described his flare-ups as increased pain with prolonged walking and standing. He reported that functional loss or functional impairment was that he was unable to kneel on his left knee and had difficulty squatting. On range of motion testing at the March 2018 VA examination, the Veteran’s left knee had flexion from 0 degrees to 125 degrees and extension from 120 degrees to 0 degrees. The examiner noted there was no pain noted on examination, no evidence of pain with weightbearing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and no objective evidence of crepitus. The examiner noted the Veteran was able to perform repetitive use testing with at least three repetitions and that there was no additional functional loss or range of motion after three repetitions. The examiner noted the Veteran was being examined immediately after repetitive use over time and noted pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted the examination was not being conducted during a flare-up and indicated that pain, weakness, fatiguability or incoordination would not significantly limit functional ability with flare-ups in the left knee. The examiner noted the Veteran had normal muscle strength, no ankylosis, and no muscle atrophy related to the left knee. On joint stability testing, the examiner noted there was no history of recurrent subluxation or lateral instability in the left knee and no history of recurrent effusion. The examiner noted the left knee was normal on joint stability testing, to include anterior, posterior, medial, and lateral instability testing. The examiner noted there was no evidence or history of medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or any meniscus conditions. The examiner noted the Veteran did not have any residual signs or symptoms due to past surgeries. The examiner noted the Veteran’s left knee disability did not impact his ability to perform any type of occupational task. The examiner also noted there were no objective findings of pain with passive or active range of motion in the left knee and no objective findings of pain with weight bearing or non-weight bearing in the left knee. During the July 2018 Board hearing, the Veteran reported that his left knee locked up if he sat too long. He explained that it would get stiff and when he extended the knee, he would hear the knee pop and crack. The Veteran also reported that when he was walking sometimes, his left knee gave way, albeit not every day. He reported he was given a brace for when he walked and worked that was given to him by the VA. He reported having four knee surgeries on his left knee and that as he has gotten older, his knees have increased in pain. He reported that once he started working for Walmart from 12 to 16 hours, the symptoms in his knee would revert back to the severity as prior to the surgery. The Veteran indicated that his medical providers have recommended total knee replacement but he does not plan to undergo surgery. He reported receiving stem cell injections but indicated he had more relief from cortisone injection but the relief only lasted two to three weeks. He reported that he had been in a pain management regimen from January 2010 to February 2015 but felt the drugs were having adverse effects on his body and that he felt sluggish all the time and sleepy. He felt as though he either had to take the drugs and work or to stop working, so he chose not to continue the pain management regiment after five years. He reported that when he wakes up in the morning, his pain level would be at a six but since he was working again, his pain increased as the day progressed. He reported that he worked an eight-hour day and that when he left work, he would be in excruciating pain. He stated he just started working at Walmart and that he was previously a manager at Walmart. The Veteran reported that the only time he was not in pain was when he was off his feet and he reported that even when sitting, if his left knee were at a 90 degree angle, it hurt. He reported that he has a metal plate in his leg from a prior surgery and in the wintertime, the symptoms were worse. He stated that he and his wife have reversed roles in household chores where his wife handled outside chores and he conducted most indoor chores due to his left knee. He also reported that he can no longer partake in physical activities he enjoyed like racquetball or run. He reported that he used to be an avid bodybuilder. The Veteran indicated he had stopped working for a period of time and just started working again. He indicated that he has not told his employer that he is not able to do something since he did not want to jeopardize his employment. He indicated that he just did what he is told to do and that he deals with the pain. He reported that once he went home, he would ice and heat his knees. The Board finds that the Veteran’s left knee disability has been manifested by pain, pain on palpation, and flexion limited at worst to 120 degrees. At no point during the period of appeal has the Veteran been found to have flexion limited to 30 degrees to warrant a 20 percent rating under Diagnostic Code 5010-5260. While the Veteran reported constant, increased, and ongoing left knee pain, the evidence does not indicate that the Veteran’s pain resulted in additional limitation of range of motion that resulted 30 degrees or more of flexion that would warrant a higher rating under DC 5260. While the Board in no way discounts the pain that the Veteran experiences in his left knee, this symptom is accounted for in the current 10 percent ratings based on traumatic arthritis with limitation of motion and does not warrant higher schedular ratings, even after considering higher ratings based on functional loss. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Codes 5260, 5261; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Accordingly, the Board finds that the weight of the competent evidence of record is against a rating in excess of 10 percent for his left knee under Diagnostic Code 5010-5260. See 38 C.F.R. § 4.71a, DC 5010-5260. The Board also finds that higher rating is not available based upon the severity of recurrent subluxation or instability. The Veteran has reported intermittent buckling of his left knee. However, the Veteran’s joint stability tests were consistently normal upon examination. As the Veteran does not have any instability that could be objectively elicited, the Board does not find that the Veteran has any instability that could be considered “moderate”; therefore, a higher rating under DC 5257 is not warranted during the appeal period. Separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violating the rule against pyramiding, 38 C.F.R. § 4.14, regardless of whether the limited motions are from the same or different causes. See VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004). The Board acknowledges that during the June 2011 VA examination, the Veteran had full extension to 0 degrees, but then the examiner noted he had extension limited to 10 degrees on pain. However, the Board finds that this isolated test is not indicative of the Veteran’s disability picture as a whole. All subsequent range of motion testing, as soon as two months after the June 2011 VA examination, have consistently noted that the Veteran’s extension has not shown to be limited to 10 degrees or more, even on pain. See August 2011 private treatment record from Bienville Orthopaedic Specialists, October 2014 VA treatment record, April 2016 VA examination, September 2017 VA treatment record, and March 2018 VA examination. As the knee does not more nearly approximate limitation of extension to 10 degrees, a separate or higher evaluation based upon limitation of extension is not available. 38 C.F.R. § 4.71a, DC 5261. The Board also finds that higher ratings are not warranted under Diagnostic Codes 5258 and 5259. The 2016 and 2018 VA examiners noted that the Veteran did not have a current meniscus disability or disability of his semilunar cartilage. As such, the Board concludes that higher ratings are not available under these diagnostic codes for the left knee. The Board has considered the application of Diagnostic Codes 5256, 5262 and 5263. 38 C.F.R. § 4.71a. However, the medical evidence of record does not show that the Veteran has ankylosis of the left knee. The aforementioned range of motion findings clearly demonstrate that the Veteran’s knee is not fixed or immobile. While the Veteran has some recognized limitation of motion of the left knee, it has not been shown to be fixed in place, nor has the Veteran indicated this. With regard to malunion or nonunion of tibia and fibula, the Board notes that there is no evidence of fracture or dislocation of the left knee during the appellate period. There is likewise no evidence that the Veteran has, or ever had, genu recurvatum. As such, further inquiry into the remaining diagnostic codes is not warranted. In sum, the Board finds that the weight of the evidence does not support a rating in excess of 10 percent for either his instability or limitation of motion of the left knee during the appeal period; accordingly, the Veteran’s claim must be denied. See 38 C.F.R. 4.3; 4.71a, DC 5010, 5257, 5260, 5256-5263. Upon review of the record, the Board also finds that the Veteran does not warrant an extraschedular rating for his service-connected left knee disability, as the evidence does not demonstrate that his disability has produced an exceptional or unusual disability picture with such related factors as frequent hospitalization or marked interference with employment to render impractical the application of the regular schedular standards. Specifically, there is no evidence that the Veteran’s service-connected left knee disability has resulted in the Veteran having frequent periods of hospitalization for related symptoms; indeed, the record does not show any hospitalization for this disability. Further, the preponderance of the evidence does not demonstrate that there has been marked interference with employment in excess of what is contemplated in the 10 percent schedular rating so as to render impractical the schedular rating criteria. In light of the foregoing, the Board finds that the Veteran’s service-connected left knee disability is not manifested by an exceptional or unusual disability picture to render impractical the application of the regular schedular standards. TDIU Entitlement to TDIU Entitlement to a TDIU requires evidence of service-connected disability so severe that it is impossible for the veteran in particular, or an average person in general, to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations indicate that when a veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Marginal employment is not considered substantially gainful employment. Id. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Even in light of the grant of an increased rating of 10 percent for the Veteran’s service-connected left knee scars, the Veteran still does not meet the schedular criteria for a TDIU since there is not one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Nevertheless, if a Veteran does not meet the aforementioned criteria, a total disability may still be assigned, but on a different basis. 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(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16(a). Id. Referral to the Director of Compensation Service for extraschedular consideration is not warranted since the Veteran was working full time until 2015. Although the Board acknowledges that the Veteran has reported that he quit that job due to his service-connected left knee related disabilities, he has also testified that he has returned to work in 2017 and was continuing to work on a full-time basis as of the date of the Board hearing in July 2018. The sole fact that the Veteran has difficulty obtaining or maintaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran is capable of performing the physical and/or mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As noted above, the Board acknowledges that the Veteran had quit his employment in 2015 due to his increased left knee pain. However, the Board notes that the Veteran was not terminated as a result of his service-connected disability and that he quit on his own volition. There was no indication from the record that the Veteran’s employer found that he was unable to conduct the normal duties of the job position prior to his quitting the position or that the Veteran was unemployable. The Board further notes that the Veteran has since returned to working, and the specifically reported during the July 2018 Board hearing that he has not informed his employer that he is unable to perform the duties of his employment. As such, the Board finds that the weight of the evidence of record does not suggest that the Veteran is limited to marginal employment. The Board acknowledges an August 2013 clinical assessment of pain form in which the evaluator noted that the Veteran’s pain in left knee would distract him from adequately performing daily activities or work. The evaluator also noted that the Veteran’s physical activity would greatly increase his pain and cause distraction from tasks or abandonment of tasks. The evaluator noted the Veteran’s pain and/or drug side effects could be expected to be severe and to limit his effectiveness due to distraction, inattention, or drowsiness. The evaluator noted that the Veteran would not be able to engage in any form of gainful employment on a repetitive, competitive and productive basis over an eight-hour work day, forty hours a week, without missing more than two days of work, per month, or frequent interruptions to his work routine due to his condition. The evaluator also noted the Veteran’s pain was severe enough to cause significant work absences, sick days, or other time off from work. However, the Board highlights the private treatment records from SCPM from 2012 to 2014 that noted the Veteran’s activities of daily life were generally not affected or were positively affected by the pain medications. Moreover, October 2014, April 2016, and March 2018 VA examinations have all consistently indicated the Veteran’s ability to work. In a July 2016 VA examination addendum opinion, the examiner noted the Veteran was capable of sedentary and light duty activity. The examiner noted the Veteran could sit without impairment and could stand for two hours and walk 100 yards. The Board also highlights a June 2015 Social Security Administration disability determination that found the Veteran was not disabled. The Veteran also admitted during the July 2018 Board hearing that he is able to work and get by with taking over the counter pain medication, albeit the knee disability was reported to severely impact the things he enjoyed doing. Although the Board acknowledges the Veteran’s reports and his contentions regarding the knee pain affecting his ability to work and the pain medication causing him to feel sluggish when he was on them, the Board highlights the Veteran’s and capability to maintain employment and return to employment. The Board also acknowledges the August 2013 private evaluator who noted that the distraction caused by the left knee pain would adversely affect the Veteran’s employment. Nevertheless, the Board notes that the private evaluator failed to specifically find that the Veteran’s service-connected left knee disability was so severe that it is impossible for the Veteran, in particular, to follow a substantially gainful occupation. To the contrary, all VA examinations of record have indicated the Veteran’s left knee disabilities have not prevented him from working. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Court has expressly declined to adopt a “treating physician rule” which would afford greater weight to the opinion of a veteran’s treating physician over the opinion of a VA or other physician. See Guerrieri, 4 Vet. App. at 471- 73 (1993). Here, the Board assigns the October 2014, April 2016, July 2016, and March 2018 VA examiners’ opinions greater probative weight as they are based on examination of the Veteran and a review of the Veteran’s medical history, to include the relevant period on appeal. Accordingly, the Board concludes that a TDIU is not warranted at any time during the pendency of this claim, and referral of the TDIU claim for extraschedular consideration is not in order. Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel