Citation Nr: 1809006 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 10-40 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. The propriety of a reduction from a 30 percent evaluation to a 10 percent evaluation for degenerative joint disease (DJD) of the left knee effective June 1, 2010. 2. Entitlement to an evaluation in excess of 30 percent from June 1, 2010, to August 20, 2012, for DJD of the left knee and to an evaluation in excess of 40 percent thereafter. 3. Entitlement to a total disability rating based on individual unemployability (TIDU). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Army from September 1972 to September 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board recognizes that the claim for an increased evaluation for DJD of the left knee has been certified to the Board as entitlement to an evaluation in excess of 20 percent from June 1, 2010, to August 20, 2012, and to an evaluation in excess of 40 percent thereafter. However, for the reasons explained below, the Board finds that the prior reduction to the Veteran's evaluation for left knee DJD was not proper. As the Veteran's prior evaluation is being restored to 30 percent the Board will construe the Veteran's claim to be an appeal for an evaluation in excess of that percentage with respect to the period before August 21, 2012. The Veteran appeared and testified before a member of the Board in June 2014. That Board member is no longer employed at the Board and the Veteran chose to appear and testify at an additional hearing before the undersigned Veterans Law Judge at a hearing conducted in December 2017. Transcripts of both hearings have been associated with the Veteran's claims file. The Board previously remanded this matter in August 2014 to obtain additional records from the Social Security Administration (SSA) and to obtain a contemporaneous medical examination. SSA records have since been received and associated with the Veteran's claims file and he attended an additional medical examination in December 2015. Accordingly, the Board is satisfied that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. In a February 2010 rating decision, the RO reduced the evaluation for left knee DJD from 30 percent to 10 percent, effective June 1, 2010. 2. Resolving all reasonable doubt in the Veteran's favor, the evidence of record at the time of the February 2010 rating decision did not indicate that the Veteran's left knee disability had materially improved on a sustained basis. 3. For the period from June 1, 2010, to August 20, 2010, the Veteran's left knee DJD was not manifested by extension limited to 30 degrees or flexion limited to 45 degrees. 4. For the period beginning August 21, 2010, the Veteran's left knee DJD has not been manifested by extension limited to 45 degrees or by flexion limited to 45 degrees. 5. The Veteran's left knee disability has been manifested by frequent episodes of "locking," pain, and effusion into the joint. 6. The Veteran's service-connected disability of left knee DJD has caused significant difficulties with prolonged standing, walking, or running but has not been shown to preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for the restoration of the Veteran's 30 percent disability evaluation for left knee DJD effective June 1, 2010, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017). 2. The criteria for an evaluation for left knee DJD in excess of 30 percent due to limitation of motion for the period from June 1, 2010, to August 20, 2012, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code (DC or Code) 5010-5261 (2017). 3. The criteria for an evaluation for left knee DJD in excess of 40 percent due to limitation of motion for the period beginning August 21, 2012, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5010-5261 (2017). 4. The criteria for a separate evaluation for frequent episodes of "locking," pain, and effusion into the joint of the left knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5258 (2017). 5. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Reduction In certain circumstances, disability evaluations may be reduced. However, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). In a rating reduction case, it must be ascertained, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Moreover, 38 C.F.R. §§ 4.2 and 4.10 provide that in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement in a disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO when the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 281-282. It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). With respect to the Veteran's appeal, the Board ultimately finds that sustained and material improvement in the Veteran's left knee DJD had not been shown by the evidence of record and the reduction in the evaluation of this disability is therefore not warranted. The Veteran's knee was assigned a 30 percent evaluation based on the results of a September 2005 VA medical examination. At that time, the Veteran reported that his knee gave way and had stiffness, weakness, episodes of locking, and swelling in the winter. He also indicated he had severe flare-ups in his symptoms every two to three weeks that occurred worse in the winter and that, during the winter season, he also experienced swelling. Upon examination, he had active flexion to 110 degrees with pain at 100 degrees, passive flexion to 115 degrees with pain at 100 degrees. Extension was limited to 15 degrees in the left knee. The Veteran subsequently filed several claims for increased evaluation and was afforded a VA examination in September 2008 that showed some clinical improvement in his condition. However, as the Veteran's improvement was not felt to be sustained, his disability evaluation of 30 percent was continued at that time. He was eventually scheduled for a November 2009 VA examination where he demonstrated an antalgic gait in addition to crepitus, effusion, and tenderness in his left knee. His extension was normal, but his active flexion was measured to 115 degrees with pain. The additional degrees of extension demonstrated by the Veteran indicate some degree of clinical improvement. However, evidence of clinical improvement alone is insufficient to warrant a reduction in a disability evaluation and instead there must be a showing of actual improvement in the overall condition. Of particular note, the Veteran explicitly denied that the condition had improved at the November 2009 VA examination and instead stated to the examiner that his left knee had gotten "progressively worse". VA treatment records from that period also suggest that there had not been sustained or substantial improvement in the Veteran's functional use of his left knee in everyday life. For instance, the Veteran stated to his treating orthopedist at a February 2010 clinical evaluation that his knee was no better, continued to swell, give out, and cause him to fall. Of note, the Veteran's treating clinician explicitly encouraged the Veteran to return to VA and seek a restoration of his payments because the Veteran's treatment had "clearly" not resolved the Veteran's pain. Although the primary focus in a rating reduction evaluation is the evidence before the rating board at the time of the ultimate reduction, the Board also finds the subsequent procedural evidence to be illuminating in this case. During the course of the Veteran's appeal of his rating reduction, the Veteran attended an additional VA examination in August 2012. At that time, he was found to have flexion to 120 degrees with pain at 50 degrees and extension to 30 degrees with pain at 0 degrees. Due to his diminished extension, he was granted a 40 percent evaluation for his left knee DJD effective the date of his August 2012 VA examination. The RO also reviewed the Veteran's clinical treatment records and, citing a June 2010 VA clinical note indicating that the Veteran lacked 10 to 15 degrees of extension, granted an evaluation of 20 percent for left knee DJD effective June 1, 2010 - the same day that the RO had previously effectuated a reduction in the Veteran's left knee DJD evaluation to 10 percent. The short period between the Veteran's June 2010 reduction and his August 2012 increase, the competent testimony of the Veteran that his condition had not gotten better, and the competent evidence that symptoms fluctuate seasonally, the Board finds that the evidence of record did not show actual improvement in the function of the Veteran's left knee. Accordingly, the rating reduction was not proper. II. Increased Evaluation - Legal Standard Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). For the entire period currently on appeal, the Veteran's left knee disability has been evaluated pursuant to DC 5010-5261. Hyphenated Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2017). Code 5010 is used to evaluate arthritis and Code 5261 assesses different evaluations based on limitation of extension of the knee. Pursuant to DC 5261, a 10 percent evaluation is warranted when extension is limited to 10 degrees, a 20 percent evaluation is warranted when extension is limited to 15 degrees, a 30 percent evaluation is warranted when extension is limited to 20 degrees, a 40 percent evaluation is warranted when extension is limited to 30 degrees, and a 50percent evaluation is warranted when extension is limited to 40 degrees. 38 C.F.R. § 4.71a. Separate compensable evaluations for knee disabilities may also be awarded pursuant to Code 5257 (recurrent subluxation or lateral instability), Code 5258 (dislocation of semilunar cartilage), Code 5259 (symptomatic removal of semilunar cartilage), and Code 5260 (limitation of flexion). Separate evaluations may also be warranted with evidence of impairment of the tibia and fibula or genu recurvatum pursuant to DCs 5262 and 5263, respectively. 38 C.F.R. § 4.71a Under Code 5257, a 10 percent evaluation is warranted with slight symptoms, a 20 percent is warranted with moderate symptoms, and 30 percent is warranted with severe symptoms. Descriptive terms such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Code 5258 provides for a single, 20 percent evaluation upon a showing of frequent episodes of "locking," pain, and effusion into the joint. Code 5259 allows for only a 10 percent evaluation when the evidence shows symptomatic removal of the semilunar cartilage. Finally, DC 5260 allows for a 10 percent evaluation when flexion is limited to 45 degrees, a 20 percent evaluation when flexion is limited to 30 degrees, and a 30 percent evaluation when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. III. Increased Evaluation - From June 1, 2010, to August 20, 2012 With respect to the period from June 2010 to August 20, 2012, the Board ultimately finds that the criteria for an evaluation in excess of 30 percent have not been met. As noted above, the Veteran attended a clinical examination in early June 2010 with his treating orthopedist. The Veteran reported increasing left knee pain and requested an additional brace for his knee symptoms at that clinical visit. Upon examination, a McMurray's test caused pain and he had trace effusion, but there was no sign of heat or inflammation. Notably, the Veteran lacked about 10 to 15 degrees of extension, yet he was also reportedly able to flex his knee well. The Veteran also endorsed frequent "locking" of his knee in his September 2010 VA Form 9, and he stated that his knee would often swell and continuously ached. He attended a follow-up evaluation in April 2011 at his treating VA orthopedist and again reported continuous pain in his knee. Range of motion testing found the Veteran able to move his knee from 10 to 100 degrees. In contrast to the June 2010 examination, however, the Veteran reportedly failed to exhibit signs of effusion and continued to have no signs of heat, swelling, or inflammation. The Veteran attended yet another VA orthopedic examination for treatment purposes in September 2011. He again reported pain with walking and stated that his knee would "lock up on him." Trace effusion of +1 was noted at that time and the Veteran had lateral grind with valgus stress. Range of motion testing found the Veteran to lack 15 degrees of extension, but the examining clinician again reported that the Veteran was able to flex well. Of particular note, the Veteran reported to another orthopedic evaluation in March 2012. In contrast to the earlier orthopedic visits, the Veteran indicated at that time that his knee was not particularly symptomatic and the Veteran denied any swelling in this joint. An exam also failed to find any signs of inflammation or effusion, but there was atrophy noted in the Veteran's knee and pain with weight bearing. Viewed in total, the record simply lacks the requisite clinical findings or competent evidence to indicate the criteria for a rating in excess of 30 percent for the Veteran's left knee disability is warranted for the period from June 2010 to August 20, 2012. At no point was there a measurement indicating that the Veteran's extension was limited to 30 degrees. Similarly, there is no evidence that the Veteran exhibited the limitation of flexion to 45 degrees that is required to warrant a compensable rating pursuant to DC 5260. The Board acknowledges and is sympathetic to the Veteran's other knee-related symptoms during the period from June 2010 to August 2012 and will discuss them in greater detail below. The Veteran is also competent to report his observable symptoms of pain in his knee and the impact this has on his ability to walk. However, the Board finds the repeated clinical findings by treating clinicians in this case to be more probative in determining the degree of limitation in motion in the Veteran's knee for that period. The Board has also considered whether a higher rating should be assigned in accordance with the holding of DeLuca but ultimately finds that no additional increase in the Veteran's evaluation is warranted. Although the Veteran indicated in this period that his symptoms were worse during the winter season, there is no competent evidence suggesting that he experienced additional loss of motion in his knee due to flare-ups or after repetitive use even during winter months. For these reasons, the Board finds that the preponderance of the probative and competent evidence of record weighs against a finding that the Veteran satisfied the criteria for an evaluation in excess of 30 percent under Code 5261 or that he warranted a compensable evaluation pursuant to Code 5260. IV. Increased Evaluation - Beginning August 21, 2012 The Board also finds that the criteria for an increased evaluation due to limitation of motion have not been met for the period beginning August 21, 2012. On that date, the Veteran attended a VA medical examination where he reported pain, difficulty with walking, and stiffness. These symptoms reportedly led him to move to a wheeled walker and also include swelling, popping, and a weak leg, with pain that is worse in cold, damp weather. Although the Veteran did report stability limitations at that time, the examiner noted that he did not report flare-ups in his symptoms. Upon examination, however, the Veteran's clinical findings did not rise to the severity that would warrant an increased evaluation based upon limitation of motion. The Veteran's flexion was limited to 120 degrees, with pain at 50 degrees, and his flexion was limited to 135 degrees after repetitive use testing. His extension was limited to 30 degrees and was painful, with no additional loss of motion after repetitive use testing. These findings do not indicate that the Veteran had the 45 degrees or fewer of flexion necessary for a compensable rating under DC 5260 or the limitation in extension to 45 degrees that is required for an evaluation of 50 percent pursuant to DC 5260. Subsequent examinations included similar or greater ranges of motion in the Veteran's knee. At the June 2014 Board hearing, the Veteran reported that his knees had not improved and acknowledged that he could continue to walk to some degree, but he stated that his knee changes based on the weather and that his symptoms got worse with colder seasonal weather. The Veteran also indicated that he would fall at any moment if it were not for his brace and that his instability in this joint had gotten worse. Pursuant to the Board's remand directives, the Veteran attended an additional VA medical examination in July 2015. At that time, the Veteran indicated that the pain in his knee had increased since the most recent prior VA examination and that he could not bend his knees properly. Range of motion testing of the left knee indicated that the Veteran had 15 to 130 degrees of flexion and 130 to 15 degrees of extension with pain noted on exam and during weight bearing. The Veteran also had tenderness to palpation on the lateral surfaces of his knee and on the kneecap. After repetitive use testing, the Veteran experienced additional loss of motion and was found to have 20 to 125 degrees of flexion and 125 to 20 degrees of extension. The examiner indicated that it was not possible to determine without speculation whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time. The Veteran attended yet another VA medical examination to determine the severity of his left knee DJD in December 2015. At this evaluation, the Veteran again reportedly denied flare-ups in his symptoms and repeated that his condition had again worsened since the most recent VA medical examination with a decreased ability to walk. The examiner indicated that the Veteran had flexion to 112 degrees and extension from 125 to zero degrees with no pain noted and no additional loss of motion after repetitive-use testing. However, there were reportedly signs of crepitus and pain with weight bearing in addition to tenderness to palpation during lateral stress. Of note, the examiner indicated that the evaluation was being conducted immediately after repetitive use over time and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability. Subsequently, the Veteran attended additional VA clinical visits for treatment purposes with his orthopedic specialist. For instance, the Veteran noted in September 2016 that his knee gave out all the time and had caused issues with his balance. However, his range of motion at that time was measured to be 5 to 100 degrees and stability testing was normal. At another treatment visit in February 2017, the Veteran again was found to have flexion to 100 degrees and a loss of 5 degrees of extension. The following month, the Veteran's active range of motion was identical and in April 2017, the Veteran's treating clinician indicated that he had active flexion to 120 degrees and his extension lacked 5 degrees. Finally, the Veteran attended additional VA clinical visits in July and September of 2017. At the first clinical evaluation, the Veteran had range of motion from 5 to 105 degrees without joint line tenderness, although he continued to indicate that he still experienced falls despite constant use of his brace. At the September examination, the Veteran's gait was slow and unsteady, but the examiner noted that his active range of motion was within functional limits. The Board ultimately finds that the range of motion measurements documented in these clinical visits and at his VA medical examinations do not show the loss of range of motion necessary to warrant an evaluation beyond 40 percent under DC 5261 or a compensable evaluation pursuant to 5260. At the December 2017 hearing, the Veteran testified that his knee had gotten worse over time and caused balance problems, but that there had been no change since the time he was granted his 30 percent evaluation in 2005. He explained that he could no longer run, stand up throughout different church functions, ascend or descend stairs, shovel snow, or cut grass. The Veteran also indicated that the most recent VA medical examiner forced his knee past where the Veteran felt comfortable. The Board acknowledges that the Veteran is capable of providing competent testimony regarding these symptoms. However, the record does not appear to include any evidence that he possesses the medical knowledge, training, and experience necessary to provide a competent opinion or statement regarding the specific degrees of limitation of motion caused by his left knee DJD. Moreover, despite the Veteran's discomfort at the most recent VA medical examination, the other VA medical examination results from the period beginning August 21, 2012, fail to contain any evidence that his range of motion has been limited to the requisite degrees to warrant an increased evaluation. The Veteran's treating clinicians have similarly failed to report such severe loss of motion. The Board has also considered whether an additional increase in evaluation is warranted due to loss of function caused by pain, weakness, fatigability, or incoordination after repeated use over time or during a flare-up pursuant to DeLuca. However, as was the case with the period before August 21, 2012, the evidence of record fails to contain competent medical or lay evidence that the Veteran experiences significant deterioration in the functioning of his knee during a flare-up or after repeated use that would cause his flexion to be limited to 45 degrees or his extension would be limited to 45 degrees. Accordingly, the Board finds that the preponderance of the competent and probative evidence of record since August 21, 2012, weighs against a finding that the criteria have been met for a compensable evaluation pursuant to DC 5260 or an evaluation in excess of 40 percent for DC 5261. V. Separate Evaluations for the Knee In addition to the Diagnostic Codes governing limitation of motion, additional evaluations may also be proper for disabilities of the knee with a showing of abnormalities in the semilunar cartilage, recurrent subluxation or lateral instability, impairment of the tibia and fibula, or evidence of genu recurvatum. Here, there is no competent evidence that the Veteran experiences any impairment of the tibia or fibula or that he has genu recurvatum. As such, additional compensable evaluations under DC 5262 and 5263 are not warranted. However, the record does indicate that the Veteran has had some meniscal abnormalities. Throughout the period on appeal, the Veteran has repeatedly stated that he has difficulties with balance that have caused him to require a brace, cane, and eventual wheeled walker. In his September 2010 VA Form 9, the Veteran indicated that his knee often would swell and frequently lock up. He reiterated his complaints of locking at a September 2011 VA clinical evaluation with an orthopedic specialist, at which point he also exhibited signs of effusion in his left knee. The Veteran also indicated at the August 2012 VA medical examination that he had difficulty walking with knee stiffness in addition to swelling that occurred independent of his activities. The July 2015 VA medical examination report also includes reports of swelling. Similarly, at a clinical evaluations at a treating VA facility in September 2016 and July 2017, the Veteran again exhibited signs of swelling in his left knee. The Veteran is competent to report symptoms of swelling and locking in his knees and the numerous complaints of similar symptoms throughout the record enhances the credibility of these lay statements. Notably, both the July and December 2015 VA medical examiners indicated that the Veteran has a history of abnormalities in his meniscus. Specifically, the December 2015 VA medical examiner explained that the Veteran had undergone a meniscectomy in 2003. Unfortunately, this examiner did not describe the extent to which the Veteran's meniscal condition caused symptoms in the Veteran's left knee. However, the July 2015 VA examiner indicated that the Veteran's meniscal abnormality caused frequent episodes of joint effusion. This appears consistent with the Veteran's repeated demonstration of swelling and effusion in his joint both before and after that VA medical examination. Taken with the Veteran's competent and credible statements of frequent locking of his knee, the Board finds that the preponderance of probative and competent evidence suggests that criteria for a 20 percent evaluation pursuant to DC 5258 have been met. Finally, the Board has also considered whether the evidence supports an evaluation for lateral instability or recurrent subluxation of the Veteran's left knee pursuant to DC 5257. The Veteran has repeatedly indicated that he experiences problems maintaining stability in his left knee and has been prone to frequent falls. At the August 2012 VA examination, the Veteran indicated that his stability limitations and difficulty with walking had caused him to use a wheeled walker over the prior few years. He reiterated at the June 2014 Board hearing that his instability had gotten worse to the point that he was then using a brace, without which he stated his knee could buckle and cause him to fall. More recently, the Veteran stated to a treating VA clinician at a September 2016 clinical visit that he continued to have issues with his balance and he indicated that he continued to fall at a July 2017 treating evaluation at a VA facility. As was the case with the Veteran's reports of locking up and swelling, he is competent to report the observable symptoms of lack of stability in his left knee. The Board also has no reason to doubt the sincerity of his statements and the Board finds that they are therefore entitled to some degree of probative weight. However, it is somewhat unclear the extent to which the Veteran's lay statements regarding difficulty with balance and falling relate to actual lateral instability or recurrent subluxation in his left knee or whether they result from the Veteran's documented meniscal abnormality, swelling, and episodes of "locking up." Notwithstanding the Veteran's repeated statements that he experiences persistent joint instability, the Board finds it highly probative that treating and non-treating clinicians alike have generally failed to report any objective signs of lateral instability or subluxation in the Veteran's left knee. For instance, stability testing was normal at each of the VA examinations that occurred in August 2012, July 2015, and December 2015. Treating VA clinicians also reported normal stability test results in October 2015, September 2016, February 2017, and July 2017. Of particular relevance, many of these objective findings of a stable left knee were reported in the same clinical encounter at which the Veteran subjectively reported difficulty with falling or instability in his left knee. The Board also acknowledges that the August 2012 VA medical examiner also indicated that there was "evidence or history of recurrent patellar subluxation/dislocation" to a moderate degree in the left knee. However, the examiner did not specify whether this moderate subluxation was purely historical or whether there was current evidence of any recurring subluxation or dislocation. Notwithstanding this ambiguity, this examiner performed joint stability testing in the Veteran's left knee and found no signs of anterior, posterior, or medial-lateral instability in the Veteran's left knee. As the other clinical findings in the record from June 2010 through the present fail to demonstrate any pattern of recurrent instability or subluxation, the Board therefore finds this examiner's statement that the record contains "evidence or history of" recurrent patellar subluxation/dislocation to be of little probative weight. Overall, in light of the repeated reports by treating and non-treating medical professionals that the Veteran fails to have any signs of left knee instability or recurrent subluxation, the Board finds that the preponderance of the probative and competent evidence indicates that the Veteran does not have other impairment of the knee causing even slight recurrent subluxation or lateral instability. Accordingly, the criteria under Code 5257 have not been met in this case and an additional separate evaluation pursuant to that Diagnostic Code is not warranted. VI. TDIU - Legal Standard 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 disability or disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2017). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340 (a)(1), 4.15 (2017). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. The determination as to whether a total disability rating is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether his or her service-connected disabilities, alone, are of sufficient severity to produce unemployability. Neither non-service-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19 (2017). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). VA regulations place responsibility for the TDIU determination on VA, and a medical examiner's opinion as to the employability of a particular claimant is not binding on VA. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In deciding whether a TDIU may be awarded, an adjudicator must first evaluate the severity of the Veteran's service-connected disabilities. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). 38 C.F.R. § 4.16(b) provides a mechanism for the entitlement to a TDIU for a claimant whose service-connected disabilities fall short of the rating thresholds set forth in 38 C.F.R. § 4.16(a). In those instances, and as the facts warrant, rating boards should refer to the Director, Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service connected disabilities. 38 C.F.R. § 4.16(b). VII. TDIU - Analysis Throughout the period under consideration, the only disability for which the Veteran has been service-connected has been DJD of the left knee. However, even considering the Board's order in this decision restoring the Veteran's prior 30 percent evaluation and the grant of a 20 percent separate evaluation pursuant to DC 5258, the evaluation for this disability has fallen short of the 60 percent threshold set forth in 38 C.F.R. § 4.16(a). As such, the Board is not permitted to grant entitlement to a TDIU in the first instance. Nonetheless, the Board may consider whether it is appropriate to refer the Veteran's claim to the Director, Compensation Service under 38 C.F.R. § 4.16(b). Such a referral is appropriate only when a claimant's service connected disabilities render the claimant unemployable (i.e. unable to secure or follow gainful employment). Here, the Veteran has consistently contended that the limitations of his left knee have prevented him from being able to work for the entire appellate period. At the August 2012 VA examination, the Veteran reported that his knee disability caused difficulty walking and required the use of a wheeled walker. However, his testimony regarding his ability to walk and work was somewhat conflicted at the June 2014 Board hearing. Initially, the Veteran appears to have acknowledged that he could walk "a while" despite not being able to run, yet he also indicated that he could not work at that time because he was not able to walk. He subsequently clarified that he could walk a little bit with his cane but was not able to walk a long distance without a brace or holding on to another person. By the time of an October 2015 VA clinical visit with the Veteran's orthopedist, the Veteran estimated that he could walk 150 feet with a cane and reiterated at the December 2015 VA medical examination that his left knee caused difficulties with walking. Most recently, the Veteran testified before the undersigned Veterans Law Judge at the December 2017 hearing that it takes him a while after standing up before getting his balance, that he was not able to stand up long enough to attend various church functions, that he could not walk up or down stairs, and that he was unable to run, shovel snow, or cut grass. The Board does not doubt the sincerity of the Veteran's beliefs and the evidence of record as a whole appears to confirm that he has significant limitations in his ability to walk, climb stairs, stand for prolonged periods, or run due to his left knee. The Veteran is also certainly permitted to provide an opinion as to the observable effects of his left knee, including difficulty with these activities that require him to be on his feet. Accordingly, the Board finds that his statements are entitled to some degree of probative weight. However, notwithstanding these limitations, the Board ultimately finds that the limitations caused by the Veteran's left knee DJD would not preclude him from securing and following all substantially gainful occupations. For instance, the August 2012 VA examiner was asked to provide an opinion regarding the functional impact of the Veteran's knee and indicated that the Veteran was able to stand or walk for less than hour with the use of a rolling walker despite difficulties getting up and down from a seated position. The July 2015 examiner also suggested that the Veteran would have difficulty with a job that required bending, tugging, or kneeling and would not be able to do physical work that required walking up inclines or ladders. Finally, the December 2015 VA examiner suggested that the Veteran's left knee disability would impact employment that required prolonged standing, walking, running. Each of these examiners is trained medical professionals who personally examined the Veteran and observed the functional limitations of his disability. The Board also has no reason to doubt the credibility of any of these examiners and finds that their opinions are entitled to substantial probative weight. The Board finds it highly probative that none of the VA medical examiners in this case has suggested that the Veteran would have any difficulty with sitting. Moreover, a schedular rating itself is recognition that a claimant's industrial capacity is impaired to some degree. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the injury. 38 C.F.R. § 4.1; Van Hoose, supra. Although the Veteran's service-connected knee disability may hinder some aspects of employment, a combined compensable schedular rating of less than 100 percent implies a degree of interference with employment that would not preclude a particular claimant from securing and following all substantially gainful employment. The record also indicates that the Veteran sought disability benefits administered by SSA shortly before the current appellate period. In the course of that adjudication, SSA secured opinions from a medical consultant in April 2010 that indicated the Veteran would be able to stand or walk two to three hours per day on a regular basis and would be limited in pushing and pulling with his lower left extremity. The consultant opined further that the Veteran would occasionally be able to kneel or crouch and occasionally climb ladders. Although this consultant provided this opinion prior to the current appellate period, the Board finds it highly probative that this examiner also failed to indicate any difficulties with sitting or to suggest that the Veteran experiences functional deficits that would prevent him from engaging in a job that was sedentary in nature. The Board has also considered the fact that SSA ultimately determined that the Veteran was disabled pursuant to SSA rules and regulations. Although disability determinations made by SSA may be pertinent to claims for VA benefits, they are not controlling for VA determinations. Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). Despite some similarities between the two disability regimes, there are "significant differences in the definition of disability under the Social Security and VA systems." Id. Notably, the Veteran's representative acknowledged at the December 2017 Board hearing that SSA's determination was ultimately based on the effects of the Veteran's diabetes mellitus and hypertension. As these disabilities are not service-connected, the Board is not permitted to consider whether they would cause additional limitations that these disabilities would have on the Veteran's ability to secure and follow a substantially gainful occupation. As such, the Board finds that SSA's determination in this case is of little probative weight. At the December 2017 hearing, the Veteran also acknowledged that he worked through 2005 and had to leave that employment due to problems with his blood sugar, blood pressure, and substance abuse. The Veteran also explained at that hearing that his work history included fairly physical jobs and past work included a job as a federal police officer, a gym supervisor, and as a supervisor at a home for children. The Board finds that the Veteran's left knee disability would not allow him to return to any of those physically demanding positions. However, the Board finds that the preponderance of the probative and credible evidence, including the opinions of the numerous VA examiners in this case, indicates that the Veteran's left knee disability would not prevent him from physically performing a job that required only infrequent standing or walking and which was instead largely sedentary in nature. Notably, the Veteran also testified at the recent hearing that he has a four-year college degree. Given this advanced education and the other evidence of record, the Board finds that the functional limitations caused by left knee DJD would not prevent the Veteran from securing and following a substantially gainful sedentary occupation. As the preponderance of the evidence in this case is against the Veteran's claim for a TDIU, his claim must be denied and the doctrine of the benefit of the doubt is not for application. VIII. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, there have been no contentions that the Veteran has received insufficient notice and the Board is satisfied that VA has provided sufficient notice to the Veteran in this claim. The Board also finds that all relevant and identified treatment records, including disability records from SSA, have been obtained and associated with the Veteran's claims file. He has also been afforded VA medical examinations in August 2012, July 2015, and December 2015. The Board ultimately finds that VA has satisfied its duty to assist the Veteran by providing an adequate VA examination. In making this determination, the Board has considered the holding in Correia v. McDonald, 28 Vet. App 158 (2016) which holds that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board recognizes that the December 2015 VA examination does not include separate findings in active and passive motion. However, it indicates that the Veteran moved on his own free will, indicating that pain in active motion has been considered. It follows that an assessment of passive motion would yield the same result. If the Veteran was able to move his left knee by himself to a particular degree, this knee would be capable of the same movement by the examiner, and the results in active motion are applicable to passive motion. For these reasons, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2014); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). ORDER Restoration of the 30 percent disability evaluation for left knee DJD is granted, effective June 1, 2010. An evaluation in excess of 30 percent for left knee DJD for the period from June 1, 2010, to August 20, 2012, is denied. An evaluation in excess of 40 percent for left knee DJD for the period beginning August 21, 2012, is denied. A separate evaluation of 20 percent for frequent episodes of "locking," pain, and effusion into the joint of the left knee is granted. Entitlement to a TDIU is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs