Citation Nr: 20004207 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 14-09 221 DATE: January 16, 2020 ORDER Entitlement to an increased rating for degenerative joint disease of the left knee, currently evaluated as 10 percent disabling prior to June 29, 2015, is denied. Entitlement to an increased rating for residuals of a lateral meniscectomy of the left knee, currently evaluated as 20 percent disabling prior to June 29, 2015 (exclusive of temporary total evaluations from May 10, 2011, to September 1, 2011, and from July 30, 2014, to November 1, 2014) is denied. Entitlement to an increased rating for a total left knee replacement, currently evaluated as 60 percent disabling on or after August 1, 2016 (exclusive of a temporary total evaluation from March 26, 2018, to May 1, 2019), is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to August 1, 2016. FINDINGS OF FACT 1. Prior to June 29, 2015 (exclusive of temporary total evaluations from May 10, 2011, to September 1, 2011, and from July 30, 2014, to November 1, 2014), the Veteran’s left knee disability was not productive of actual or functional flexion limited to 30 degrees; actual or functional extension limited to 10 degrees; lateral instability or recurrent subluxation; ankylosis; impairment of the tibia and fibula; or genu recurvatum. He is already assigned the maximum schedular evaluation available for semilunar cartilage conditions. 2. Since August 1, 2016 (exclusive of a temporary total evaluation from March 28, 2016, to May 1, 2019), the Veteran has been assigned the maximum rating available under the law for his total left knee arthroplasty. 3. Prior to August 1, 2016, the Veteran’s did not meet the schedular criteria for TDIU, and his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to June 29, 2015, the criteria for an evaluation in excess of 10 percent for a degenerative joint disease of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5256-5262. 2. Prior to June 29, 2015 (exclusive of temporary total evaluations from May 10, 2011, to September 1, 2011, and from July 30, 2014, to November 1, 2014), the criteria for an evaluation in excess of 20 percent for the residuals of a left knee meniscectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59 4.71a, Diagnostic Codes 5258, 5259. 3. Since August 1, 2016 (exclusive of a temporary total evaluation from March 28, 2016, to May 1, 2019), a schedular rating in excess of 60 percent is not available for the Veteran’s total left knee arthroplasty. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.68, 4.71a, Diagnostic Code, 5055. 4. The criteria for TDIU have not been met prior to August 1, 2016. 38 U.S.C. § 1155; 38 C.F.R. § 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to September 2002. This case initially came before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision. In that rating decision, the Agency of Original Jurisdiction (AOJ) denied an increased rating for degenerative joint disease of the left knee and proposed to reduce the evaluation for the residuals of a partial lateral meniscectomy of the left knee from 10 percent to noncompensable, effective December 1, 2010. In a September 2010 rating decision, the AOJ reduced the evaluation for the residuals of a left knee meniscectomy to a noncompensable evaluation. In May 2011, the Veteran filed a notice of disagreement with the May 2010 rating decision. The Board has previously construed the notice of disagreement to include the AOJ’s decision to reduce the rating for the Veteran’s service-connected left knee disability In a December 2013 rating decision, the AOJ assigned a temporary total evaluation for a left knee arthroscopy, effective from May 10, 2011, and a 10 percent evaluation, effective from September 1, 2011. Thereafter, in a January 2014 rating decision, the AOJ determined that clear and unmistakable error had occurred in the December 2013 rating decision in which the AOJ assigned a 10 percent evaluation for the residuals of a left knee meniscectomy. The AOJ proposed to reduce the evaluation for the residuals of the left knee meniscectomy from 10 percent to noncompensable. In an April 2014 rating decision, the AOJ reduced the evaluation for residuals of a left knee meniscectomy to a noncompensable evaluation, effective July 1, 2014. In January 2015, the Board remanded the case to the AOJ for further development. The case was subsequently returned to the Board for appellate review. In an October 2016 rating decision, the AOJ assigned a temporary total evaluation for a total left knee replacement, effective from June 29, 2015, and a 60 percent evaluation, effective from August 1, 2016. The AOJ returned the case to the Board for appellate review of the issue of entitlement to TDIU prior to March 30, 2016. Thereafter, in a November 2016 statement, the Veteran’s representative asserted that the Veteran is entitled to an effective date earlier than March 30, 2016, for the grant of TDIU. Nevertheless, the Board notes that, in the October 2016 rating decision, the effective date assigned was August 1, 2016, and the issue was recharacterized to reflect that date. In July 2017, the Board remanded the case to the AOJ for further development. That development has been completed, and the case has since been returned to the Board for appellate review. In a November 2019 rating decision, the AOJ increased the evaluation from noncompensable to 20 percent for the residuals of a left knee meniscectomy, effective from April 3, 2008. The AOJ also assigned a temporary total evaluation for arthroscopic surgery, effective from May 10, 2011, and a 20 percent evaluation, effective from September 1, 2011. In addition, the AOJ assigned a temporary total evaluation for arthroscopic surgery, effective from July 30, 2014, and a 20 percent evaluation, effective from November 1, 2014. The AOJ further assigned a temporary total evaluation for a left total knee replacement, effective from June 29, 2015, and a 60 percent evaluation from August 1, 2016. The AOJ also assigned a temporary total evaluation for a left total knee replacement revision, effective from March 26, 2018, and a 60 percent evaluation, effective from May 1, 2019. Excluding the periods of temporary total evaluations, the evaluations assigned are less than the maximum award allowed under VA law and regulations; therefore, the claims for increased evaluations for the service-connected left knee disability remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. 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.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran’s service-connected degenerative joint disease of the left knee has been assigned a 10 percent evaluation prior to June 29, 2015, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. His service-connected total left knee arthroplasty (previously evaluated as residuals of a lateral meniscectomy of the left knee) is currently evaluated as 20 percent disabling prior to June 29, 2015 (exclusive of temporary total evaluations from May 10, 2011, to September 1, 2011, and from July 30, 2014, to November 1, 2014), and 60 percent disabling effective from August 1, 2016 (exclusive of a temporary total evaluation from March 26, 2018, to May 1, 2019), pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5260, a noncompensable evaluation is contemplated for flexion limited to 60 degrees. A 10 percent disability evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is assigned when flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. Under Diagnostic Code 5055, a minimum 30 percent evaluation is assigned for prosthetic replacement of the knee joint. A 60 percent evaluation is assigned for prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 100 percent evaluation is assigned for one year following implantation of the prosthesis. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). A 20 percent rating is the maximum schedular evaluation available under Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent disability evaluation is assigned for the symptomatic removal of semilunar cartilage. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5263, a 10 percent disability rating is assigned for acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5263. Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant’s painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to increased ratings for his service-connected left knee disabilities. Prior to June 29, 2015 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected left knee disabilities prior to June 29, 2015. Initially, the Board finds that the Veteran is not entitled to an increased evaluation under Diagnostic Code 5260 for limitation of flexion for the left knee prior to his total left knee arthoplasty on June 29, 2015. In this regard, the record does not show that the Veteran’s left knee flexion was limited to 30 degrees or less to warrant a higher evaluation. In fact, during a November 2013 VA examination, the Veteran demonstrated left knee flexion to 140 degrees or greater, and he had left knee flexion to 120 degrees at a March 2015 VA examination. During a June 2015 VA examination, testing also revealed left knee flexion to 110 degrees. As such, an increased evaluation is not warranted under Diagnostic Code 5260 prior to June 29, 2015. The Board also finds that the Veteran is not entitled to a higher or separate rating under Diagnostic Code 5261 for limitation of extension for his left knee prior to June 29, 2015. The record does not show that left knee extension was limited to 10 degrees or more to warrant a separate 10 percent evaluation or higher. In fact, during the November 2013, March 2015, and June 2015 VA examinations, the Veteran demonstrated left knee extension to 0 degrees. As such, an increased or separate evaluation under Diagnostic Code 5261 is not warranted prior to June 29, 2015. In an effort to afford the Veteran the highest possible rating, the Board has also considered whether any other rating criteria are applicable. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Nevertheless, the Board finds that the Veteran is not entitled to separate or higher evaluations for lateral instability or recurrent subluxation under Diagnostic Code 5257 for the left knee prior to June 29, 2015. The Board notes that the Veteran reported that his left knee gave way during the November 2013 VA examination; however, the November 2013, March 2015, and June 2015 VA examiners found no instability on testing. In fact, anterior, posterior, and medial-lateral stability tests were normal, and the March 2015 and June 2015 VA examiners specifically reported that there was no left knee joint instability. Thus, the preponderance of the evidence weighs against entitlement to higher or separate evaluations are not warranted under Diagnostic Code 5257 for the left knee prior to June 29, 2015. In addition, the Board finds that a higher evaluation is not warranted for the left knee under Diagnostic Code 5258 for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, or under Diagnostic Code 5259 for the symptomatic removal of semilunar cartilage. Semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). Under Diagnostic Code 5259, the maximum schedular evaluation is 10 percent, and under Diagnostic Code 5258, the maximum schedular evaluation is 20 percent. The Veteran is already assigned the maximum schedular evaluation of 20 percent under Diagnostic Code 5258 for the left knee prior to June 29, 2015. See November 2019 rating decision. Thus, a higher evaluation cannot be granted. The Board has also considered whether a higher or separate evaluation is warranted under any other diagnostic code. However, as the evidence of record does not demonstrate that the Veteran has ankylosis, impairment of the tibia and fibula, or genu recurvatum, he is not entitled to higher evaluations under Diagnostic Codes 5256 (ankylosis), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum). There is simply no evidence of such manifestations. Indeed, based on the aforementioned range of motion findings, the record shows that the Veteran’s right knee is not fixated or immobile. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Moreover, the November 2013 and March 2015 VA examiners specifically reported that the Veteran had no ankylosis of the left knee. The November 2013 and March 2015 VA examiners also indicated that the Veteran had no evidence of tibial and fibular impairment of the left leg. Therefore, separate or higher evaluations are not warranted under Diagnostic Codes 5256, 5262, and 5263. In addition, the Board notes that the Veteran has been assigned separate 10 and 20 percent ratings prior to June 29, 2015, which contemplate painful motion. There is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Thus, an increased or separate evaluation is not warranted under Diagnostic Code 5010. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran’s left knee disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned evaluations, and no higher. In this regard, the Board observes that the Veteran complained of pain and decreased range of motion throughout the appeal period. However, the effect of the pain in the Veteran’s left knee and his limitation of motion are already contemplated in the assigned evaluations. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond those already assigned prior to June 29, 2015. The Veteran denied having any flare-ups during the November 2013, March 2015, and November 2015 VA examinations. During all of those examinations, he was also able to perform repetitive use testing with at least three repetitions, and there was no additional functional loss or range of motion after three repetitions. In addition, the November 2013, March 2015, and June 2015 VA examiners indicated that the Veteran had normal muscle strength of the left knee and that he had no muscle atrophy of the left leg. Thus, even taking into account the Veteran’s reports, the evidence does not show that he more nearly approximates the criteria for a higher evaluation. Indeed, he has still maintained flexion greater than required by the rating criteria for an increased evaluation. Accordingly, the Board concludes that an increased or separate evaluation is not warranted for the Veteran’s service-connected left knee disability under DeLuca. On or After August 1, 2016 Effective from August 1, 2016, the Veteran was assigned a 60 percent evaluation for his service-connected left knee disability, following a left total knee arthroplasty on June 29, 2015. He underwent a left total knee arthroplasty revision surgery on March 26, 2018, and he was assigned a temporary total evaluation from March 26, 2018, and a 60 percent evaluation from May 1, 2019. Under Diagnostic Code 5055, a 60 percent evaluation is assigned for prosthetic replacement of a knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. As previously noted, the Veteran was assigned temporary 100 percent evaluations for the periods from June 29, 2015, to August 1, 2016, and from March 26, 2018, to May 1, 2019, based on his total knee replacement and revision surgeries and convalescence thereafter. After one year following implantation of the prosthesis, a 60 percent evaluation is the maximum schedular evaluation available under Diagnostic Code 5055. There is also no higher rating available under any other provision governing the evaluation of knee disabilities. Rather, a combined rating greater than 60 percent for the knee is prohibited by the amputation rule, as 60 percent is the highest rating available for amputation of the leg above the knee. 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Codes 5163, 5164. Accordingly, an increased evaluation is not warranted. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists 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, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, 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 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. In considering the evidence of record under the law and regulations as set forth above, the Board concludes that the evidence does not show that the Veteran is entitled to TDIU prior to August 1, 2016. The Veteran submitted a claim for TDIU that was received by VA on May 26, 2011. He was denied entitlement to TDIU in an August 2011 rating decision because his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. Moreover, he did not meet the schedular criteria for TDIU at that time. The Veteran submitted another claim for TDIU, which was received by VA on April 24, 2015. He was granted TDIU in an October 2016 rating decision, effective from August 1, 2016, which corresponds to the end of a period of temporary total evaluation for his right knee replacement. In a November 2016 statement, the Veteran’s representative asserted that the Veteran was unemployable due to his service-connected disabilities long before the assigned effective date for TDIU. In a July 2019 statement, the Veteran’s representative contended that the Veteran is entitled to TDIU effective from at least May 19, 2015, which he reported was the date that the Veteran filed his claim for TDIU. However, he also asserted that an earlier effective date would be appropriate in light of the Veteran’s combined impairments dating to his original application date. Prior to August 1, 2016, the Veteran was service-connected for sleep apnea, evaluated as 50 percent disabling; degenerative joint disease with limited motion of the left knee, evaluated as 10 percent disabling; a cervical spine strain, evaluated as noncompensable; pseudofolliculitis barbae, evaluated as noncompensable; and residuals of a left partial lateral meniscectomy of the left knee, evaluated as noncompensable. His combined evaluation was 60 percent. Thus, he did not meet the schedular criteria. The schedular criteria were later met when the AOJ granted service connection for other specified depressive disorder, claimed as depression, in an August 2016 rating decision. The AOJ assigned an evaluation of 70 percent, effective from March 30, 2016. However, the Veteran was in receipt of a temporary total evaluation for his left knee replacement from June 29, 2015, to August 1, 2016. Thus, as of August 1, 2016, his combined evaluation was 90 percent, and he met the schedular criteria for TDIU. The Board has determined that the Veteran did not meet the schedular requirements for TDIU prior to his total left knee replacement on June 29, 2015. Therefore, entitlement to TDIU prior to June 29, 2015, may only be established on an extraschedular basis. The Board is precluded from assigning an extraschedular rating in the first instance; however, the Board must specifically adjudicate the issue of whether referral for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) is warranted. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001). In this case, the Board concludes that, prior to the Veteran’s total left knee replacement in June 2015, his service-connected disabilities alone did not present any unusual or exceptional circumstances that would have warranted a referral of the total rating claim to the Director of the VA Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). In a May 2011, the AOJ determined that the Veteran had sufficient education to have overcome any impairments to our employability and was not in need vocational rehabilitation and employment services. It was noted that he had maintained continuous, stable employment since April 2004, completed a bachelor’s degree in criminal justice in August 2010, and was pursuing a Master of Business Administration. A counseling record indicated that the Veteran had an inability to stand or walk, climb stairs, kneel, or crouch for prolonged periods and lift heavy items due to his service-connected left knee disability. It was also noted that he used a CPAP machine for sleep apnea, but that he did not report any limitations associated with the condition. The Veteran also reported that he had been placed on workman’s compensation at his current job. The counselor found that he had sufficient education to obtain and maintain jobs in the criminal justice field that would be consistent with his abilities, aptitudes, and interest. In making that finding, she indicated that the Veteran had not yet made any real attempt to market himself, but that his degree qualifies him for a myriad of jobs in the criminal justice field with over 142 job openings posted in that area at that time. She stated that he would qualify for employment as a probation officer, group home manager, residential counselor, juvenile offender counselor/case manager, jailer, and corrections officer. The Veteran was also encouraged to use the other resources offered to explore job opportunities in the criminal justice field, and he was provided two scholarship resources and advised that may be able to request 12 months of entitlement under the Post 9/11 GI Bill because he wanted to pursue further education. In an April 2015 VA Form 21-8940, the Veteran claimed that he became too disabled to work in August 2011 and that he had not tried to obtain employment since that time. He also indicated that he had completed four years of college. He asserted that his service-connected left knee disabilities prevented him from working and stated that he was asked to resign from his job in August 2011 because he had filed a workman’s compensation lawsuit. In a May 2015 VA Form 21-8940, the Veteran reported that he last worked full-time in August 2011. He had worked in stocking and receiving. He again claimed that he was unable to work due to his service-connected left knee disabilities; he did not report that any other service-connected disabilities impacted his ability to work. In a November 2013 VA examination report, the VA examiner opined that the Veteran’s service-connected left knee disability, pseudofolliculitis barbae, and cervical spine strain would not prevent the average individual from obtaining and maintaining gainful employment. She stated that a review of the Veteran’s records and clinical examination findings did not demonstrate that the Veteran’s service-connected disabilities are of such magnitude to render him totally disabled. In a June 2015 VA knee examination report, the VA examiner opined that, although employment duties requiring prolonged standing, walking, or squatting should be avoided, the Veteran’s service-connected residuals of a meniscectomy and degenerative joint disease of the left knee would not preclude all forms of employment. In a June 2015 VA sleep apnea examination report, the VA examiner opined that the Veteran’s sleep apnea would not preclude employment. She noted that the Veteran’s sleep apnea was well-controlled with CPAP and did not impose any functional limitation that would impair his ability to secure and/or maintain gainful employment. In a June 2015 VA skin examination report, the VA examiner opined that the Veteran’s pseudofolliculitis barbae would not preclude employment. She reported that the condition was not active and that it did not cause any functional impairment. In a July 2016 private vocational assessment, a private consultant opined that the Veteran had been unable to secure and maintain substantially gainful activity, even at the sedentary level, due to his service-connected disabilities beginning in 2011. She noted that it was recommended that he perform sedentary work due to his left knee disabilities in 2011. She also indicated that hypersomnolence and fatigue caused by the Veteran’s sleep apnea impaired his daytime quality of life and that persistent daytime sleepiness impacted his ability to work because it affected his ability to function. The vocational expert reported that the Veteran’s past work history was limited to heavy manual labor positions with extended periods of standing and walking. She also noted that he completed his associate degree in general studies, but that he never used his degree in any occupation and that he had no certifications or skills that would transfer to sedentary work. The consultant further stated that the Veteran’s extreme fatigue resulted in daytime sleepiness and napping for over 50 percent of the day. She indicated that there were no jobs that would allow the Veteran to sleep during the work day and surmised that he would likely be terminated for falling asleep on the job. Nevertheless, the Board notes that private vocational expert also discussed the Veteran’s depression, which was not service-connected until March 30, 2016. He has been in receipt of a 100 percent evaluation or TDIU since June 29, 2015. In addition, the private vocational expert indicated that the Veteran had an associate’s degree in general studies; however, as previously noted, he has a bachelor’s degree in criminal justice and had been pursuing a master’s degree. Thus, she appears to have relied on an incomplete or partially inaccurate factual basis, which reduces the probative value of the opinion. As previously discussed, a VA vocational and rehabilitation counselor found that the Veteran had sufficient education to obtain and maintain jobs in the criminal justice field that would be consistent with his abilities, aptitudes, and interest. She indicated that his degree qualifies him for a myriad of jobs in the criminal justice field and stated that he would qualify for employment as a probation officer, group home manager, residential counselor, juvenile offender counselor/case manager, jailer, and corrections officer. Moreover, the November 2013 and June 2015 VA examiners opined that the Veteran’s disabilities did not impact his ability to work. The June 2015 VA examiner indicated that the Veteran’s left knee disability limited his duties that required prolonged standing, walking, or squatting; however, she opined that the disability would not preclude all employment. Based on the foregoing, the Veteran undoubtedly had industrial impairment as a result of his service-connected disabilities prior to August 1, 2016, as evidenced by his disability evaluations. However, the evidence does not establish that his service-connected disabilities precluded gainful employment during time period on appeal. The Board notes that “[t]he percentage ratings 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.” 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm) and 38 C.F.R. § 4.15. In reaching this decision, the Board has considered the Veteran’s education, training, and work history as reflected in the record, as well as the lay and medical evidence of the effects of his service-connected disabilities, as outlined above, and finds that his specific history and disability picture supports a finding that he could perform some forms of employment prior to his left total knee replacement. See Withers v. Wilkie, 30 Vet. App. 139 (2018); Geib v. Shinseki, 733 F.3d 1350 (2013) (determination of unemployability is not a medical question). Therefore, the Board finds that the requirements for assignment of an extraschedular TDIU evaluation prior to August 1, 2016, have not been met. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.