Citation Nr: 19141541 Decision Date: 05/30/19 Archive Date: 05/30/19 DOCKET NO. 12-28 425 DATE: May 30, 2019 ORDER Entitlement to a rating in excess of 20 percent for right knee osteoarthritis before June 6, 2013 is denied. Entitlement to a rating in excess of 30 percent for partial right knee replacement, since August 1, 2014, is denied. Entitlement to a separate rating 10 percent disability rating for right knee instability, effective September 8, 2010 through June 5, 2013, is granted. Entitlement to a separate rating 20 percent rating for right knee instability, effective December 11, 2017, is granted. Entitlement to total disability rating based upon individual unemployability (TDIU) before September 26, 2016 is denied. Entitlement to TDIU beginning September 26, 2016 is granted. FINDINGS OF FACT 1. From September 8, 2010, through June 5, 2013, the Veteran’s right knee osteoarthritis was manifested by episodes of locking, pain, and effusion into the joint, pain with weightbearing, and, at worst, flexion to 110 degrees and extension to 5 degrees. 2. Since August 1, 2014, the Veteran’s partial right knee replacement has been manifested by, at worst, pain with weight bearing, tenderness, and flexion to 110 degrees with full extension; severe painful motion or weakness are not shown. 3. The Veteran’s right knee disability manifested with slight instability from September 8, 2010 through June 5, 2013 and moderate instability since December 11, 2017. 4. The evidence of record is against a finding that, prior to September 26, 2016, the Veteran’s service-connected right knee disability precluded him from securing or following substantially gainful employment consistent with his education and occupational experience. 5. The Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation consistent with his education and occupational experience beginning September 26, 2016. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right knee osteoarthritis before June 6, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5258. 2. The criteria for a rating in excess of 30 percent for partial right knee replacement since August 1, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256 to 5263. 3. The criteria for a separate 10 percent rating for right knee instability have been met from September 8, 2010 through June 5, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for a separate 20 percent rating for right knee instability have been met as of December 11, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 5. For the period from September 8, 2010 through September 25, 2016, the criteria for a TDIU were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16(b). 6. The criteria for a TDIU are met beginning September 26, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to May 1982. Evidence in the file also establishes that the Veteran next served in the United States Army Reserves for two years and then the National Guard until July 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In September 2017, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Effective the date of service connection, September 8, 2010, the Veteran’s right knee disability was rated at 20 percent under Diagnostic Code 5258 for dislocated semilunar cartilage. In June 2013, the Veteran underwent surgical placement of a right knee medial unicompartmental prosthesis. As the name implies, this is not a total knee replacement but a partial knee joint replacement. A July 2014 rating decision awarded the Veteran a temporary total disability for convalescence for a period from June 2013 to August 2013 and then reestablished the 20 percent rating for the right knee disability under Diagnostic Code 5258. However, in a September 2017 decision, the Board determined that the Veteran’s right medial unicompartmental prosthesis warrants a rating under Diagnostic Code 5055 since the June 2013 surgery. In Hudgens v. McDonald, 823 F.3d 630, 639 (Fed. Cir. 2016), the United States Court of Appeals for the Federal Circuit held the provisions of Diagnostic Code 5055 are applicable to partial knee replacements. Subsequent to Hudgens, the Secretary published a final rule in the Federal Register that interprets/clarifies VA’s interpretation of Diagnostic Codes 5051 through 5056 applying only for total joint replacement, rather than partial joint replacement. See 80 Federal Register 42040 (July 16, 2015). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000; see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The effective date of the regulation amendment in this case is July 16, 2015, and there is no supplemental guidance in the Federal Register regarding the applicability date of the amendment. Thus, prior to the July 2015 amendment, Diagnostic Code 5055 applied to partial knee replacements. In this case, a rating under Diagnostic Code 5055 is more favorable to the Veteran. As such, the Board remanded the Veteran’s claim in September 2017, directing the RO to consider whether a higher rating is warranted under Diagnostic Code 5055, and to also include whether the Veteran is entitled to a longer period of convalescence following his 2013 right knee surgery since Diagnostic Code 5055 directs that a 100 percent rating should be assigned for one year following implantation of the prosthesis (knee replacement). In January 2019, the RO granted service connection for the partial right knee replacement effective the date of surgery, June 6, 2013, with a 100 percent rating until July 31, 2014, under Diagnostic Code 5055. Since August 1, 2014, the Veteran’s partial knee replacement has been rated under Diagnostic Code 5055 at 30 percent. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint or a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. As noted above, the Veteran’s partial knee replacement is service connected under Diagnostic Code 5055 since surgery on June 6, 2013. Under Diagnostic Code 5055, a 100 percent rating is assigned for one year following implantation of a knee prosthesis for a service-connected knee disability. After this period has ended, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to Diagnostic Codes 5256, 5261, and 5262. The minimum rating for knee replacement with prosthesis is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board observes that the words “slight,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. 1. Prior to June 6, 2013. Since September 8, 2010, the date of service connection, until the partial right knee replacement in June 2013, Veteran’s knee disability was originally rated under Diagnostic Code 5258 for dislocated semilunar cartilage, rated at 20 percent. See 38 C.F.R. § 4.71a. At all relevant times, the Veteran has asserted the right knee disability warrants a higher rating. An August 2010 private treatment record reflects right knee range of motion from 0 degrees extension to 120 degrees flexion. Mild laxity of the right medial collateral ligament was also found on examination. In October 2010, the Veteran reported symptoms of giving way, instability, pain, stiffness, tenderness, swelling, and weakness in a VA examination. There were no episodes of dislocation or subluxation, but he experienced locking episodes one to three times a month. He experienced moderate flare-ups weekly lasting one to two days. A flare-up resulted in decreased range of motion. The Veteran could stand for 15 to 30 minutes but was unable to walk more than a few yards. The X-ray established marked degenerative disease in the right medial compartment with degenerative disease also at the patellofemoral joint. It does not appear the Veteran’s range of motion was tested as no results were recorded. The VA examiner noted the Veteran retired in 2007 due to a neck and back injury secondary to a motor vehicle accident while working as a police officer. The examiner stated the Veteran is limited in employment as increased pain occurs with standing and walking. In the July 25, 2011, VA examination, the Veteran reported continued pain, locking, and giving out of the right knee as well as frequent flare-ups. He avoided prolonged standing, sitting, or stair climbing and could not kneel or squat. His range of motion was 0-140 degrees with pain beginning at 130 degrees. He had full extension without pain. There was no additional limitation in motion with repetition. The examiner noted that the right knee demonstrated excess fatigability, swelling, and disturbance in motion besides the loss of motion and pain. It also interfered with sitting, standing, and weight-bearing. Muscle strength was normal as were all joint stability tests. There was no history of subluxation or dislocation. The Board notes the medical records indicate that in December 2011, the Veteran’s flexion was limited to 110 degrees and extension lacked five degrees. In October 2011, the Veteran lacked 5 to 10 degrees extension. However, that result suggests that the medical provider “eyeballed” the Veteran’s extension motion and did not obtain a precise measurement using a goniometer. The Board finds this record does not represent 10 degrees of lost extension given the range provided and that that motion was measured without a goniometer. A higher rating is not warranted for meniscal problems. During this period the Veteran’s right knee disability was rated under Diagnostic Code 5258 with a 20 percent rating for dislocated semilunar cartilage, which is the highest rating available under that Diagnostic Code. While relating to meniscal disabilities, Diagnostic Code 5259 only allows for a 10 percent rating and cannot be assigned as a separate rating as the symptomatology overlaps with the symptomatology accounted for by the rating under Diagnostic Code 5258. 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Codes 5258, 5259. The Board finds that a separate 10 percent rating for slight instability is warranted during this period as mild laxity was shown on examination in August 2010 and the Veteran has reported instability and giving way during this period. A higher rating is not warranted as moderate instability is not suggested by the record. The one medical observation of instability categorized the instability as mild, and subsequent medical testing did not reveal any instability. The Veteran’s statements also do not suggest the instability is moderate in degree and were considered by the examiners and clinician. The Board has considered whether a separate rating can be assigned based on limitation of motion. During this period, the Veteran’s right knee disability was manifested by episodes of locking, pain, and effusion into the joint, pain with weightbearing, flexion to at worst 110 degrees, and extension at worst 5 degrees. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations. None of the evidence, to include the Veteran’s statements, indicate he demonstrated compensable limitation of motion (10 degrees extension or 45 degrees flexion) at any point during this period. While the Veteran has essentially stated that he has reduced motion in his knee, he has not described a range of motion less than that found on examination. In this regard, during the October 2010 VA examination he did report flare-ups but described the flare-ups as consisting of increased pain which resulted in decreased range of motion. The Veteran did not report, however, limitation of motion severe enough to warrant a compensable rating. Likewise, at the July 2011 VA examination he stated that he had continued pain, locking, giving out of the right knee, and frequent flare ups, which caused him to avoid prolonged standing, sitting, or stair climbing, and he could not kneel or squat. The Veteran’s statements do not show the requisite limitation of motion necessary for a higher or separate compensable rating. Treatment records do not show greater limitation of motion than 110 degrees flexion and 5 degrees extension, which is noncompensable under the schedular criteria. Given the above, even when considering the knee pain’s impact on physical activities, a higher or separate compensable rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. A separate rating for noncompensable but painful motion cannot be awarded as the pain is already compensated for by the rating under Diagnostic Code 5258. See 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5258. The Board is aware the Veteran argued in March 2013 that the VA examiner in July 2011 did not use a measuring tool to record his range of motion and the results are therefore inaccurate. The Board notes the instructions in the examination report include using a goniometer. The examiner reported the measurements in degrees, which would imply measurement with a goniometer. There is no requirement that the examiner state that he or she used a goniometer. There is a presumption of regularity that government officials “have properly discharged their official duties.” Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found. Ind. 272 U.S. 1, 14-15 (1926). The Veteran’s contention that the examiner did not use a goniometer (“measuring tool”) does not rebut the presumption of regularity. Moreover, the physicians who examined the Veteran would have no significant motivation to not conduct a proper examination, but rather it is reasonable to assume that the physicians would be motivated to properly conduct their duties so as to preserve their professional reputation and employment. The Board finds that the presumption that the examiner adhered to VA protocol in measuring the Veteran’s right knee motion is not rebutted. Given the above, a separate 10 percent rating for instability is warranted during this period, but no other separate or higher ratings are warranted. 2. Since June 6, 2013. As noted, the Veteran underwent a partial right knee replacement on June 6, 2013. He received 100 percent temporary total disability from June 6, 2013 to August 1, 2014. Since the Veteran received the maximum rating possible during the period of surgical convalescence, the Board has excluded this period from its analysis. In a December 2017 VA examination, the Veteran complained of severe knee pain with swelling and instability. He reported he has fallen, and the knee is weak. The Veteran was limited to ten minutes for walking, sitting, or standing. He was unable to run, bend, crawl, stoop, or squat. At most, he could carry 10 pounds. The Veteran was not able to do any type of sedentary work due to his inability to sit. The Veteran did not report any flare-ups. His range of motion was 0 to 110 degrees, but the Veteran had pain with both flexion and extension and with weight bearing. There was no change after repetition. Muscle strength was 4/5. The Veteran gave a history of moderate recurrent subluxation and lateral instability. Upon testing the Lachman test (anterior instability), posterior drawer test, medial test, and lateral test were all positive, 2+ (5-10 millimeters). The examiner stated the residuals after right knee surgery included pain, weakness, and instability. The left knee was noted to be normal. Recent treatment records dated in February 2018, indicates the Veteran has fallen at least once. In March 2018, the Veteran had full range of motion but a finding of 2+ on the Lachman test. In October 2018 he again reported falls, and instability was assessed. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s right knee replacement warrants a disability rating more than 30 percent. There has been no clinical evidence of any painful motion or weakness in the lower extremities which would be classified as “severe.” The December 2017 VA examination demonstrated 4/5 weakness, which the Board does not consider to be severe. As to pain, the Veteran reported experiencing severe pain, although the examiner simply described pain. No other clinical records note severe pain or indicate symptomatology demonstrative of severe pain. Instead, the records indicate continued complaints of pain. Given the above, as well as the Veteran’s ability to walk for 10 minutes before being limited by pain, the Board finds that severe painful motion is not present. Thus, a higher rating is not warranted when considering Diagnostic Code 5055. The Board has considered whether a higher rating, through a single rating or combination of ratings, could be assigned by using the rating criteria specific to the knee rather than Diagnostic Code 5055, but finds that this would not result in a higher rating at any time during the course of the appeal. As noted by the VA examiners, the Veteran does not have right knee ankylosis, impairment of the tibia or fibula, or genu recurvatum. Thus, ratings based on these diagnostic codes are not appropriate. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. The evidence of record shows right knee flexion limited at worst to 110 degrees with full extension. These findings were made after repetitive use over time and the Veteran did not report any flare-ups. This level of limitation of motion would result in noncompensable ratings for limitation of flexion and limitation of extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The Board acknowledges the Veteran’s various lay statements, and that he is competent to report his own observations regarding the symptoms of knee disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, to the extent the Veteran argues that pain, weakness, or instability are more severe than shown in the examinations, his statements must be weighed against the other evidence of record. Here, the Board finds the specific examination findings of trained health care professionals to be of greater probative weight than the Veteran’s more general lay assertions. Nevertheless, the December 2017 VA examination demonstrated the Veteran’s right knee is not stable with a finding of 2+ (5-10 millimeters) in all forms of stability testing: Lachman test (anterior instability), posterior drawer test, medial test, and lateral test. In addition, the Veteran is competent to report he has fallen and other episodes of instability. Reports of falls are noted in clinical records in 2018. As the Veteran’s instability symptoms are not contemplated by the current rating under Diagnostic Code 5055, a separate 20 percent rating is awarded effective December 11, 2017, the first date evidence reflects instability. An instability rating prior to that date is not warranted as the evidence does not show post-surgical instability until the VA examination performed on that date. In addition, a rating in excess of 20 percent is not warranted as severe instability is not demonstrated. By the Veteran’s own report he has moderate subluxation and instability. VA testing revealed 2+ instability, which the Board does not associate with severe instability. In sum, the Veteran’s pain, limitation of motion, weakness, etc. warrant a 30 percent rating since August 1, 2014 to the present. A separate 20 percent rating based on moderate instability of the right knee is warranted from December 11, 2017, to the present. Higher or separate ratings beyond what is described above are not warranted. TDIU The Veteran has been receiving TDIU since June 8, 2017. He has, however, asserted that his service-connected disabilities have prevented him from gainful employment prior to that date. If a Veteran is granted TDIU for part of the period on appeal, the Board must consider whether TDIU is warranted at any time during the rest of the period under consideration for an increased rating claim. The grant of TDIU that covers only part of the period on appeal does not end the TDIU analysis. See Harper v. Wilkie, 30 Vet. App. 356, 360 (2018). Thus, the Board finds that the Veteran’s claim for TDIU applies to the period before it was granted in June 2017, that is, the entire period the Veteran sought an increased rating for his right knee disability, which in this case is from September 2010 to June 2017. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 386 (March 14, 2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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). The Board notes the Veteran was only service connected for his right knee disability from September 8, 2010 until September 26, 2016. In a January 2017 rating decision, depressive disorder due to another medical condition (depressive disorder) was service connected with a 50 percent rating effective September 26, 2016. The Veteran has had additional musculoskeletal disabilities become service connected, but all are effective June 2017, the same date the Veteran was awarded TDIU. Thus, the issues facing the Board is whether the Veteran is entitled to TDIU for the period from September 2010 to September 2016 based on his right knee disability alone and/or TDIU from September 2016 to June 2017 based upon the combined effect of his right knee disability and his mental health disability. Even considering the grant of a separate rating for right knee instability in this decision, the Veteran did not become eligible for TDIU under the schedular rating criteria until September 26, 2016, when he was service connected for depressive disorder at 50 percent and his total combined rating was 70 percent. VA’s policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating. Based upon a review of the medical evidence noted above, the Board has determined that the Veteran is not entitled to a referral for TDIU consideration on an extraschedular basis prior to September 26, 2016. While it is true the Veteran stopped working in 2004, the evidence establishes that he stopped working due to injuries to other parts of his body, such as his back and neck, from motor vehicle accidents suffered while working as a police officer. The Board finds the service-connected knee disability may have impacted his ability to obtain and maintain employment during this period but did not prevent it. The symptoms associated with that disability are detailed above. Notably, the October 2010 VA examiner indicated the Veteran’s right knee limited him occupationally in that he would be limited in physical employment due to decreased strength, as well as increased pain with standing and walking. The Board has no doubt that his service-connected knee disability resulted in some limitations upon employment. He cannot perform the physical demands required for a police officer or detective to safely perform his duties but the knee disability, by itself, did not prevent the Veteran from obtaining and maintaining any gainful employment for which he was qualified for through education and experience. The Board finds that being a police officer has given the Veteran useful skills for future employment. For instance, he has administrative skills such as keeping and preparing records or other tasks that keep a business operating. The Veteran may have skills and abilities to act as a supervisor if not in the security business, then in some other area. His employment history suggests the Veteran could work in a more sedentary position that would utilize his supervisory, managerial, and administrative skills. The Veteran reports attending some college, which would also aid him in an administrative assignment. Generally, administrative work pays above the poverty threshold and would not be significantly hampered by the Veteran’s physical limitations relating to his knee disability. A disability rating itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran can perform the physical and mental acts required by employment, not whether he could find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Stated another way, evidence of occupational limitations is present in every case in which an evaluation has been assigned for a service-connected disability. See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages “represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations” and “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 several grades of disability”); see also Van Hoose, 4 Vet. App. at 363 (“A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.”). If the Board were to accept the Veteran’s argument that evidence of occupational limitations due to a service-connected knee disability necessarily constitutes evidence of unemployability, then entitlement to TDIU would be reasonably raised and warranted in every case where a veteran challenged the assigned evaluation. Here, the Veteran’s knee disability has an effect in the workplace, but the Board finds that such is reflected by the disability ratings assigned. Absent additional service-connected mental or other physical disabilities that would limit the Veteran from working in a sedentary position or limit his interaction with others such as co-workers, the Board cannot find the Veteran would have been prevented from obtaining and maintaining employment prior to September 26, 2016 considering his abilities, experience, and training. Based on the foregoing, the Board finds that the preponderance of the evidence is against entitlement to a referral to the Director for extraschedular TDIU consideration prior to September 26, 2016. 38 C.F.R. § 4.16(b). The Board finds that the Veteran became eligible for TDIU based upon the schedular criteria under § 4.16(a) as of September 26, 2016. As of that date, the Veteran was now, not only service connected for the residuals of the partial knee replacement, but also service connected for depressive disorder rated at 50 percent. In September 2016, the Veteran presented with a long-standing history of depression related to physical problems. He did not have anhedonia, homelessness, or active ideation. Nevertheless, he had a depressed mood, restricted affect, and his thoughts were preoccupied by his physical problems. In a January 2017 VA examination, the VA examiner determined that the Veteran’s mental health disability resulted in occupational and social impairment with reduced reliability and productivity. The Veteran was not working and stated he stays at home and watches TV or uses his computer. He did not socialize and did not get along with people. His wife did most of the work and took care of him. The Veteran reported he cannot stay interested in anything and had poor sleep. He gets anxious and then irritable. He feels he cannot do the jobs he used to do and feels inadequate. He is fatigued and anhedonic. He reported symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbance in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported suicidal ideation from time to time but not currently. Further he thought of all the positive things in his life, especially his family and stated he would not take any action in his thoughts. In May 2017, the Veteran’s treating mental health care provider noted a longstanding history of severe depression secondary to severe knee pain. The Veteran had chronic depression, anhedonia, occasional hopelessness, poor motivation, decreased concentration, and problems with insomnia. He does not have any suicidal ideation or homicidal ideation. The Veteran had a depressed mood, restricted affect, and impoverished thought content but it was coherent. He had fair judgement and insight but poor attention and concentration. The provider diagnosed major depression, recurrent, stating that the Veteran is unemployable due to depression. As discussed, the Veteran’s knee disability places physical limitations upon the Veteran in occupational functioning. The Veteran’s mental health disability also affects functioning and result in various symptoms affecting employment. He has trouble being around others and gets anxious and irritable trying to complete tasks. In addition, the depressive disability includes memory and concentration problems. The Veteran is also preoccupied by his physical problems and believes he cannot complete anything adequately. Thus, his mental health disability limits him to a position where he has limited exposure with the public or co-workers and supervisors. Further, even if he is placed in a solitary position, performance is affected by his self-doubts. Given the mental and physical limitations caused by service-connected disabilities, the Board finds that, as of September 26, 2016, the date service connection is effective for the Veteran’s mental health disorder, the combined physical and mental limitations placed upon any employment situation make it difficult, if not impossible, for the Veteran to secure and maintain a substantially gainful position. As such, entitlement to a TDIU is warranted starting September 26, 2016. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.