Citation Nr: 18149274 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 12-26 676 DATE: November 9, 2018 ORDER Entitlement to a disability rating in excess of 10 percent due to painful limitation of motion in the service connected left knee is denied. Entitlement to a disability rating in excess of 20 percent due to instability in the service-connected left knee is denied. Entitlement to a separate disability rating of 10 percent, but no higher, for symptomatic residuals following removal of the semilunar cartilage in the service-connected left knee, is granted for the entire period on appeal. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted as of April 6, 2011. FINDINGS OF FACT 1. Throughout the period on appeal, the most probative evidence establishes that the Veteran’s left knee disability has been manifested by painful arthritis noted on x-ray, extension limited to 5 degrees or less, and flexion limited to, at most, 100 degrees. 2. Throughout the period on appeal, the most probative evidence establishes that the Veteran’s left knee disability has, at worst, resulted in grade 1 medial instability, grade 2 lateral instability, grade 2 anterior instability and no clinical evidence of posterior instability or recurrent subluxation. 3. Throughout the period on appeal, the Veteran’s left knee disability has resulted in residual symptoms due to the partial removal of the semilunar cartilage. 4. In consideration of the Veteran’s educational attainment and occupational experience, he has been rendered incapable of securing or following substantially gainful employment due solely to his service-connected disabilities since April 6, 2011. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent due to painful limitation of motion in the service-connected left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261. 2. The criteria for a rating in excess of 20 percent due to instability in the service-connected left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. The criteria for a separate 10 percent rating, but no higher, for symptomatic partial removal of the semilunar cartilage in the service-connected left knee have been met throughout the period on appeal. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. 4. The criteria for entitlement to a TDIU have been met as of April 6, 2011. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to July 1983, and from January 1984 to March 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2011 and April 2012 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs. The issues on appeal have been recharacterized, as set forth in the Order section above, to add clarity and to better facilitate a proper decision on the merits. The Veteran provided sworn testimony before the undersigned Veterans Law Judge at a March 2013 Board hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. These matters were previously remanded by the Board in May 2017 for further evidentiary development. Having reviewed the appellate record, the Board is satisfied that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the 2018 Supplemental Statement of the Case, the Appeals Resource Center erroneously added an issue of entitlement to an evaluation in excess of 40 percent for peripheral neuropathy of the left lower extremity effective September 28, 2017. That issue has never been part of the Veteran’s appeal to the Board. The Veteran did not disagree with the 20 percent rating that was in effect for his peripheral neuropathy since 2010, nor did he disagree with the 2018 rating decision that assigned the increased 40 percent rating. Since this issue is not on appeal, the Board will address it no further. Neither the Veteran nor his representative has raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); See also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Entitlement to an increased rating for service-connected left knee disability The Veteran is currently in receipt of a 10 percent disability rating for painful limitation of motion (accompanied by x-ray evidence of arthritis) in the left knee under Diagnostic Code 5003, and a 20 percent disability rating for instability in the left knee under Diagnostic Code 5257. See 38 C.F.R. § 4.71a. He argues that his left knee disability is more severe than reflected in his current disability ratings and he seeks higher evaluations. Initially, the Board notes that the Veteran has never experienced ankylosis, impairment of tibia or fibula, or genu recurvatum, in the left knee. Consequently, he is not entitled to separate compensable ratings under Diagnostic Codes 5256, 5262, or 5263, respectively. A. Limitation of Motion To warrant a compensable rating for limitation of flexion in the left knee under Diagnostic Code 5260, the evidence must establish that the Veteran’s left knee flexion has been limited to 45 degrees or less. At no point in appellate period has the Veteran experienced limitation of flexion of 45 degrees or less in the left knee. At the August 2009 VA examination, the Veteran’s flexion was limited to 120 degrees. He exhibited no increased weakness or decreased induration/coordination following repetitive range of motion testing. In April, May, June, and July 2010 VA treatment records, the Veteran’s left knee flexion was recorded as 140, 130, 100, and 100 degrees, respectively. At a November 2010 VA examination, the Veteran’s left knee flexion was limited to 115 degrees. VA treatment records from January 2011 show left knee flexion limited to 120 degrees. January 2014 VA treatment records describe the Veteran’s left knee flexion as slightly reduced, but did not include goniometer findings recorded in degrees. April 2014 VA treatment records indicate that the Veteran had full range of motion. July 2014 VA treatment records document left knee flexion limited to 110 degrees. October 2014 VA treatment records noted full range of motion in the left knee. At the April 2015 VA examination, the Veteran’s left knee flexion was limited to 110 degrees. While the examiner concluded that pain, fatiguability, weakness, or incoordination would significantly limit functional ability with repeated use over time, this did not result in additional range of motion limitation. VA treatment records in July 2017 demonstrate limitations of left knee flexion, recorded as 100 degrees. At a September 2017 VA examination, the Veteran’s left knee flexion was limited to 85 degrees. As the above evidence demonstrates, the Veteran has never experienced left knee flexion limited to 45 degrees or less during the appellate period and he is not entitled to a compensable rating under Diagnostic Code 5260. To warrant a compensable rating for limitation of extension in the left knee under Diagnostic Code 5261, the evidence must establish extension limited to 10 degrees or greater. At an August 2009 VA examination, the Veteran’s left knee extension was 0 degrees. He exhibited no increased weakness or decreased induration/coordination following repetitive range of motion testing. In April and May 2010 VA treatment records, left knee extension was recorded as 0 degrees. In June and July 2010 VA treatment records, left knee extension was recorded as 5 degrees. At a November 2010 VA examination, the Veteran exhibited left knee extension to 0 degrees. January 2011 VA treatment records also demonstrate left knee extension to 0 degrees. January, April, and October 2014 VA treatment records indicate that the Veteran had full extension in the left knee. July 2014 VA treatment records document left knee extension to 0 degrees. At an April 2015 VA examination, the Veteran exhibited left knee extension to 0 degrees. July 2017 VA treatment records document left knee extension limited to 5 degrees. The above limitation of extension findings are not severe enough to warrant a compensable rating under Diagnostic Code 5261. The only medical evidence that demonstrates compensable limitations of extension are the results of the September 2017 VA examination, which found that the Veteran’s left knee extension was limited to 10 degrees, which could result in a 10 percent rating under Diagnostic Code 5261. However, the Veteran is already in receipt of a 10 percent disability rating under Diagnostic Code 5003 for painful limitation of motion. See discussion, infra. He could not have simultaneous limitation of motion ratings under Diagnostic Code 5003 and 5261, as that would constitute unlawful pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 261-262 (1994); see also 38 C.F.R. § 4.14. Therefore, regardless of the 2017 VA examination findings, he cannot be awarded a higher rating based on limited extension. He could get separate ratings for limited extension and limited flexion, but the flexion limitations do not meet the criteria for a separate compensable rating. At the March 2013 Board hearing, the Veteran provided general testimony as to his subjective belief that his left knee range of motion has decreased and has “been consistently going downhill since [he injured his knee] in the first place.” The Veteran is competent to report recollections and symptoms observable by sense. The medical evidence shows the range of motion in the Veteran’s left knee has certainly fluctuated at times between 2009 and 2017. However, even accepting the most limitations of motion shown, he cannot get higher ratings for the reasons described above. Even accepting the Veteran’s lay testimony, the Board affords greater evidentiary weight to the contemporaneous medical records and objective examinations by competent medical professionals, which show specific range of motion measurements, rather than a general lay statement as to limited motion. As the above analysis demonstrates, the most probative evidence preponderates against the conclusion that the Veteran has left knee flexion and extension limited to such a degree as to warrant compensable ratings under Diagnostic Code 5260 and/or 5261. However, since the evidence establishes that the Veteran has limitation of motion in the left knee that is not otherwise compensable under these diagnostic codes, but results in painful motion nevertheless, the RO has appropriately assigned a 10 percent disability under Diagnostic Code 5003 for painful degenerative arthritis. The Veteran is not entitled to a higher disability under this diagnostic code because there is no x-ray evidence of arthritis involving 2 or more major joints or 2 or more minor joint groups in the Veteran’s left knee. In light of the above, the Board denies separate compensable disability ratings under Diagnostic Codes 5260 and 5261 and denies a rating in excess of 10 percent under Diagnostic Code 5003. B. Symptomatic Meniscal Disability In Lyles v. Shulkin, 29 Vet. App. 107, 114 (2017), the United States Court of Appeals for Veterans Claim (Court) held that an evaluation for limitation of motion in the knee did not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Codes 5258 or 5259. Thus, the Board has also considered whether the Veteran is entitled to separate compensable disability ratings under Diagnostic Codes 5258 and/or 5259 for meniscal (semilunar cartilage) disability in the left knee. The appellate record reflects that the Veteran underwent a partial medial meniscectomy in the left knee in March 2005, well before the period on appeal. As such, he cannot obtain a disability rating under Diagnostic Code 5258 for dislocation of the semilunar cartilage, as this injury was corrected by the March 2005 surgery and is no longer present. However, the evidence demonstrates that the Veteran has experienced post-partial medial meniscectomy residual symptoms, such as locking, throughout the duration of the appellate period sufficient to warrant a separate 10 percent rating under Diagnostic Code 5259 for the entire appellate period. In June 2009, the Veteran exhibited locking symptoms in his left knee. In April 2010, a VA orthopedist documented that the Veteran experienced pain and mechanical symptoms, such as locking, right over the superior aspect of the patellar region in the left knee. February 2015 VA treatment record document continued left knee locking symptoms. At the April 2015 VA examination, the examiner noted the Veteran’s reports that his left knee would “lock up” while ascending and descending stairs. The examiner concluded that the Veteran was experiencing frequent episodes of joint locking due to his left knee meniscal disability. Similarly, the September 2017 VA examiner recorded that the Veteran experienced left knee locking and implicitly attributed this symptom to the Veteran’s left knee meniscal disability. Given this medical history, the Board assigns a 10 percent rating under Diagnostic Code 5259 for the entire appellate period due to residual symptoms, status post left knee partial removal of the semilunar cartilage (meniscus). To this extent, the Veteran’s appeal is granted. That is the only rating available for this condition. C. Instability The Veteran is currently in receipt of a 20 percent disability rating for moderate instability in his left knee under Diagnostic Code 5257. At the March 2013 Board hearing, the Veteran’s testimony focused on his complaints of increased instability in the left knee. He testified that in the previous year, he had fallen to the ground 10 to 15 times and caught himself before falling an additional 20 to 30 times due to left knee instability. The appellate record is further replete with the Veteran’s lay assertions that his left knee gives out on a consistent basis. He also utilizes a left knee brace regularly to stabilize his left knee. The Veteran is competent to report that he experiences a sensation of his left knee giving way as this is within the realm of his personal perception. See Layno, 6 Vet App. at 469; see also English v. Wilkie, No. 17-2083, 2018 U.S. App. Vet. Claims LEXIS 1464 (Nov. 1, 2018) (suggesting that lay evidence of knee instability is generally competent). However, the Veteran’s testimony regarding the frequency and severity of his left knee instability is not credible given its inconsistency with the other evidence in the appellate record. While the medical evidence of record establishes that the Veteran occasionally reported left knee instability and falling to his examining physicians, the Board cannot disregard that the Veteran testified to left knee instability far more severe and frequent than he reported to his treating health providers. The Court has determined the Board may properly assign more probative value to lay statements in contemporaneous medical records than subsequent statements made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Furthermore, in a January 2011 VA treatment record, a VA orthopedist remarked that the Veteran’s complaints of left knee instability and lateral pain were inconsistent with his medical history and objective physical examination findings. To the extent that the Veteran describes the frequency and severity of his left knee instability, this evidence tends to minimize the probative value of those lay statements. The Board is cognizant that objective medical evidence is not categorically more probative than lay evidence when it comes to determining the degree of left knee instability the Veteran has experienced during the appellate period. See English, at *2. Yet, in this case, the Veteran’s lay testimony and statements describing severe left knee instability are contradicted by the evidence, discussed more thoroughly below, and are not credible. This is not an instance where the Board is negating the probative value of the Veteran’s lay statements simply because they are unaccompanied by supporting contemporaneous medical evidence, which would be in contravention of Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To the contrary, the medical evidence of record, to include the February 2011 VA treatment record and all VA examinations in the appellate period, are inconsistent with and contradict the severity of the Veteran’s left knee instability as presented in his lay statements and testimony issued during the course of these proceedings. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Accordingly, these statements are afforded little evidentiary weight in this determination. The terms “slight,” “moderate,” and “severe” as set forth in Diagnostic Code 5257 are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Having appropriately considered the probative value of the Veteran’s lay statements, the Board turns to the medical evidence of record, which overwhelmingly demonstrates that the Veteran has experienced, at worst, moderate left knee instability throughout the appellate period.   Initially, the Board observes that the appellate record is devoid of any probative evidence proving that the Veteran has ever experienced recurrent subluxation. As such, the evidence discussed below will focus on the medical evidence regarding instability in the Veteran’s left knee. At the August 2009 VA examination, the examiner’s physical examination revealed normal joint stability testing in the left knee. Anterior/posterior drawer testing was negative, and the Veteran’s medial and collateral ligaments were stable with varus and valgus pressure. There was no objective evidence of left knee instability at this examination. An April 2010 VA treatment record demonstrated that the Veteran’s left knee was stable to anterior, posterior, valgus, and varus stresses. The physician noted that the Veteran was “a little looser on [anterior side] compared to the contralateral side, with maybe a grade 2 Lachman’s test.” As demonstrated by VA’s “Knee and Lower Leg Conditions” Disability Benefits Questionnaire, the Lachman’s test measures anterior instability, and when abnormal, is assigned a grade of 1 to 3 depending on severity. As the April 2010 VA orthopedist did not assign the Veteran the most severe Lachman’s grade, the Board cannot find that this treatment note demonstrates severe instability in the left knee sufficient to warrant a higher rating. In a May 2010 VA treatment record, the examining physician found no evidence of ligamentous instability in the left knee, and reported that Lachman’s and posterior drawer testing were negative. At the November 2010 VA examination, ligamentous testing in the left knee could not be conducted due to the Veteran’s report of pain. A VA treatment record from January 2011 documented that the Veteran’s left knee was stable to anterior/posterior, valgus, and varus stress testing, showing no objective evidence of instability. A VA treatment record from January 2014 documented no ligament laxity and negative anterior/posterior drawer testing in the left knee. A VA treatment record from July 2014 showed no pain with varus/valgus pressure in the left knee; and a VA treatment record from October 2014 documented normal varus/valgus and anterior/posterior drawer testing in the left knee. The Veteran was afforded a VA examination in April 2015 where joint stability testing was conducted in the left knee. Lachman’s and posterior drawer tests were normal; however, the Veteran exhibited grade 1 medial instability (out of 3 grades) with valgus pressure and grade 2 lateral instability (out of 3 grades) with varus pressure. The Veteran was afforded a final VA examination in September 2017, where left knee joint stability testing revealed normal Lachman’s, posterior, and valgus stress tests (equating to no anterior, posterior, or medial instability); however, the Veteran exhibited grade 2 lateral instability (out of 3 grades) with varus pressure. The VA examination findings showed normal anterior and posterior instability, and did not show the most severe grade of medial or lateral instability sufficient to warrant a higher disability rating than the Veteran’s current moderate evaluation. Considering the medical and lay evidence, the Board concludes that the Veteran has not experienced left knee instability to a severe degree sufficient to warrant a higher 30 percent disability rating at any point during the appellate period. Left knee joint stability testing was often normal, and when it was not, the most severe level of clinical instability was not shown on examination (that is, the examiners reported either Grade I or II findings, and not Grade III). While the Board acknowledges the Veteran’s testimony regarding falling due to left knee instability, this testimony is outweighed by the objective medical evidence, which objectively measures the severity of the left knee instability through various testing maneuvers. The evidence is not sufficient to warrant a higher disability rating under Diagnostic Code 5257. D. Additional Considerations The Board further finds that there is no basis for the assignment of schedular ratings in excess of those upheld or awarded herein based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Court has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. To the extent that the Veteran has experienced functional loss due to pain, fatigability, incoordination, pain on movement, and weakness, these symptoms have been fully contemplated by the Veteran’s assigned schedular ratings. In a March 2017 appellate brief, the Veteran’s representative raised the possibility of extraschedular consideration for the Veteran’s left knee disability under 38 C.F.R. § 3.321(b)(1). The Veteran has not expressly articulated why the schedular criteria under 38 C.F.R. § 4.71a are inadequate to justly evaluate his service-connected left knee disability. As discussed above, the Board finds that the symptomatology and impairments caused by the Veteran’s service-connected left knee disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. Neither the Veteran, nor the record, raises any particular symptomatology that is not considered by the ratings in 38 C.F.R. § 4.71a with application of 38 C.F.R. § 4.40, 4.45, 4.59 and controlling case law. The greater weight of the evidence establishes that the Veteran’s disability picture is adequately contemplated by the applicable schedular rating criteria, which have been discussed exhaustively above. Although the relevant diagnostic codes allow for higher ratings, the Board fully explained why the higher ratings were not warranted. The Board finds that the rating schedule is adequate for rating the Veteran’s disabilities and, therefore, that referral for extraschedular consideration is not warranted under the circumstances of this case. Also, the Veteran’s disabilities have at no point reflected factors that constitute an unusual or exceptional disability picture given the level of disability contemplated in his assigned ratings. Thun v. Peake, 22 Vet. App. 111, 114 (2008). Entitlement to a TDIU The Veteran contends that his service-connected disabilities have rendered him incapable of securing and following substantially gainful employment. Specifically, he has asserted that physical limitations resulting from his service-connected left knee disability prevent him from performing his past employment as a roofer and/or plumber’s assistant, and that he has no other transferable skills that would allow him to perform less physically demanding employment. 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 be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total, and 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, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). To satisfy the 60 percent disability and 40 percent disability requirements, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id. For the period since September 28, 2017, the Veteran’s total combined disability rating, including the bilateral factor, has been 80 percent, with his service-connected left lower extremity neuropathy rated at 40 percent. See 38 C.F.R. §§ 4.25, 4.26; see also July 2018 codesheet. Consequently, the Veteran has satisfied the criteria for schedular TDIU consideration during this timeframe. Prior to September 28, 2017, the Veteran did not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for schedular TDIU consideration. Including the 10 percent rating under Diagnostic Code 5259 for symptomatic residuals following partial removal of the semilunar cartilage in the left knee granted above, the Veteran’s total combined disability rating for the period prior to September 28, 2017 is 60 percent. The Veteran’s service-connected disability ratings in effect prior to September 28, 2017 do not qualify as a “single disability” under any of the listed circumstances provided in 38 C.F.R. § 4.16(a) to allow for the disability ratings to be combined for the purposes of reaching the 60 percent schedular TDIU threshold. Although most of his disabilities affect the orthopedic system, the neuropathy does not, so that rating could not be combined with the others in effect prior to September 2017. The right knee was not service-connected until September 2017. Although the Veteran’s service-connected disabilities did not meet the threshold percentage requirement to establish eligibility for TDIU pursuant to 38 C.F.R. § 4.16(a) prior to September 28, 2017; it must still be determined whether his service-connected disabilities precluded him from engaging in substantially gainful employment on an extraschedular basis. 38 C.F.R. § 4.16(b). In January 2015, the Board remanded the claim of entitlement to a TDIU with instructions for the RO to refer the matter to the Director of Compensation Service for an initial determination as to whether the Veteran was entitled to an extraschedular TDIU rating in accordance with the provisions of 38 C.F.R. § 4.16(b). In July 2016, the (Acting) Director of Compensation Service issued an administrative decision denying entitlement to a TDIU evaluation on an extraschedular basis. Given that the Veteran has satisfied the schedular TDIU criteria since September 28, 2017, and the Director of Compensation Service has considered and denied the claim on an extraschedular basis prior to September 28, 2017 in the first instance, the Board has appellate jurisdiction to address the merits of the Veteran’s TDIU claim. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Regarding the Veteran’s educational and past work experience, the appellate record reflects that the Veteran has no higher than a high school education and his occupational background involved physical labor jobs. The Veteran testified at the March 2013 Board hearing that he was trained as a draftsman/surveyor during his active duty service, but those positions typically require a college degree in the private sector. Even if the Veteran had the requisite college degree, he remarked that his physical impairments would preclude him from performing the duties, which include climbing ladders and crossing rough terrain. The Veteran further testified that he had limited experience using a computer, aside from sending a routine e-mail. The Veteran was last employed as a plumber’s assistant, where he was required to consistently carry heavy pipes, kneel, squat, and navigate tight spaces. Prior to this employment he worked as a roofer. Based on this information, the Board concludes that the Veteran has prior experience performing medium or heavy level physical labor. As discussed below, the most probative evidence establishes that the Veteran’s service-connected disabilities have resulted in physical impairment that have precluded him from securing and following substantially gainful employment consistent with his prior occupational experience. In August 2009, the Veteran was afforded a VA examination to assess the nature and severity of his service-connected left knee disability. Following a review of the Veteran’s electronic claims file, an in-person interview, and a complete physical examination, the VA examiner opined that the Veteran “would have difficulty with industrial or sedentary employment that required any prolonged walking, standing, or sitting” due to his service-connected left knee disability. The examiner further concluded that the Veteran would be precluded from lifting heavy items or climbing ladders—which are primary duties of his past employment as a plumber’s assistant and roofer—due to pain and numbness resulting from his service-connected lumbar and cervical spine disabilities. A November 2010 VA examiner conducted a similar examination and reached an identical conclusion. The Veteran was evaluated by a VA orthopedist in July 2014, who confirmed that the Veteran would be unable to perform his past employment as a roofer or plumber’s assistant due to left knee pain. At an April 2015 VA examination, the examiner noted that the Veteran’s service-connected left knee disability significantly impacted his ability to perform occupational tasks. The VA examiner explained that the Veteran’s left knee disability would result in difficulty performing prolonged ambulation, stair or ladder climbing, and repetitive bending or squatting. The Board notes that these are the exact physical demands required to perform the Veteran’s past employment. Despite this opinion, the VA examiner found that the Veteran would not be precluded from obtaining or maintaining gainful employment performing “non-physically demanding work.” The examiner explained that the Veteran had maintained employment in several capacities over the decades despite his left knee disability, and that he ended employment secondary to a nonservice-connected workers’ compensation injury. While the April 2015 VA examiner’s assessment of the Veteran’s physical limitations due to his service-connected left knee disability is probative, the Board finds that the examiner’s opinion on unemployability is of little evidentiary value, for the reasons set forth below. First, the examiner usurped the Board’s adjudicative authority in issuing legal findings and credibility determinations instead of a medical opinion. The issue of whether a TDIU should be awarded is not a medical issue within the examiner’s purview; but is instead a legal determination for the adjudicator to make. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA not a medical examiner”). Second, the examiner’s conclusion that the Veteran could engage in less physically demanding employment completely ignores the Veteran’s educational and occupational history. A TDIU analysis must take into account the individual veteran’s education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see also Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994). Under the physical limitations assessed by the April 2015 VA examiner, the Veteran would be unable to perform physical labor consistent with his past employment experiences. Finally, the Board is not persuaded by the April 2015 VA examiner’s analysis that the Veteran worked for several years despite his left knee disability and ultimately left employment due to a nonservice-connected disability. While it is true that the Veteran suffered a right foot injury that contributed to his decision to end employment as a plumber’s assistant, such a finding is ancillary to the TDIU question before the Board. Review of the medical evidence demonstrates that the Veteran was experiencing functional decline and difficulty performing his occupational tasks as a plumber’s assistant well before this workplace injury. See April 2009 VA treatment record (“[H]e works as a plumber’s assistant…the pain is truly excruciating to him after a long day at work. It is starting to interfere with his ability to do his job”); see July 2009 VA treatment record (“[S]ignificant pain and difficulty with activities…was actually carrying a heavy metal pipe. The left knee “gave out on him” and he fell, dropping the metal onto his leg”). Moreover, the examiner’s reliance on the Veteran’s history of working physical labor for years with his left knee disability completely disregards the fact that the Veteran’s symptoms worsened necessitating a May 2010 arthroscopic chondroplasty, osteoplasty, and removal of a loose body. Additionally, cortisone and viscosupplementation shots have proven unsuccessful at mitigating the Veteran’s left knee symptoms. In fact, the Veteran’s left knee disability is so severe that the July 2014 VA orthopedist even recommended a total left knee replacement. For these reasons, the April 2015 VA examiner’s unemployability opinion is given little evidentiary value in this determination. In September 2017, the Veteran was afforded a comprehensive VA examination to assess the impact of his service-connected disabilities on his physical functioning. Regarding the Veteran’s service-connected left and right knee disabilities, the examiner found that the Veteran was precluded from kneeling or squatting; he could not drive for more than 1.5 hours without stopping to move around; he would have trouble ascending and descending stairs; and would frequently need to readjust his knees if performing sedentary office-like work. The examiner further stated: Although the Veteran cannot perform arduous/unlimited work that involves several hours without rest and frequent knee flexion/extension, he can perform light office type work for [] short stints if he can elevate his legs and reposition frequently. Because of the Veteran’s degenerative joint changes in both knees[,] he has limited strength and flexibility that is required to be able to perform the functional requirements of a plumber. He cannot climb up and down ladders easily nor kneel/squat…however he can perform light office type work…that allows for frequent leg repositions and elevation of his legs. The September 2017 VA examiner also assessed the impact of the Veteran’s service connected left foot, left lower extremity neuropathy, and lumbar spine disabilities on unemployability. The examiner found that the Veteran would have limited stamina and could not engage in prolonged standing, walking, or kneeling with feet flexed. He would also experience limited sensation in the left lower extremity, which would be a safety risk working around heavy equipment, as he would be unable to perceive or feel a left lower extremity injury if it were to occur. The Veteran also could not engage in heavy lifting and would experience limitations rotating his torso to scan the environment for hazards. Unlike the April 2015 VA examiner’s unemployability opinion, the September 2017 examiner’s analysis focused on the Veteran’s physical limitations due to his service-connected disabilities. It is clear from this opinion that the Veteran lacks the residual functional capacity to perform physical work. The Veteran has no experience performing sedentary work, and even if he did, the Board finds the examiner’s requirement that his legs be frequently elevated to be overly restrictive to the point that it effectively precludes sedentary employment. Given the above, the Board concludes that the Veteran’s service-connected disabilities have collectively resulted in an inability to secure and follow substantially gainful employment, consistent with his educational attainment and occupational experience. The Veteran experienced severe pain in his left knee that resulted in significant physical impairments that impeded his ability to perform his former work as a roofer and plumber’s assistant, or jobs of like duties requiring physical labor. He has also experienced additional impairment from his other service-connected disabilities that further render him individually unemployable. This fact is best exemplified by the thorough opinion of the September 2017 VA examiner. Resolving reasonable doubt in the Veteran’s favor, his claim of entitlement to a TDIU is granted. The Veteran filed a formal claim for TDIU on September 13, 2010, alleging he had stopped working September 1, 2010. However, he testified before the undersigned that he stopped working in April 2011, and his claim for Social Security benefits was predicated on inability to work since April 6, 2011. His TDIU claim identified a plumbing company as his employer from 2000 to September 2010, but his claim with the Social Security Administration indicated he remained with this company until April 6, 2011, and he noted this was the only job he had held in the last 15 years. Therefore, despite the fact the TDIU claim was received in September 2010, the Veteran’s testimony before the Board and the documents from the Social Security Administration show he continued to work until April 6, 2011. See also Veteran’s VA Form 9 received December 2012 (“I took doctors advice and haven’t worked since April 2011.”); November 2010 VA examination report (“veteran is currently employed as a plumber’s assistant and has been employed [with the same company] for the past 10 years.”) Therefore, April 6, 2011, is the earliest date as of which TDIU is warranted. Although the medical evidence from 2009-2010 indicated his disabilities were affecting his employment, the fact is he was able to remain gainfully employed despite those limitations until April 6, 2011. There is no allegation from him that any earnings he received prior to leaving his job on April 6, 2011, were marginal in   nature. His formal TDIU claim, as well as the information from the Social Security Administration, show his income was in excess of $30,000 per year, clearly demonstrating gainful employment until April 2011. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel