Citation Nr: 20005771 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 07-19 911 DATE: January 23, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability prior to February 28, 2012 and a rating in excess of 40 percent thereafter is denied. Entitlement to an initial rating in excess of 10 percent for a left knee disability is denied. Entitlement to a rating in excess of 20 percent for a right knee disability is denied. From December 22, 2017, entitlement to a separate rating of 10 percent, but no higher, for limitation of extension of the right knee is granted. Entitlement to a separate compensable rating for scars of the left knee is denied. Entitlement to a separate compensable rating for scars of the right knee is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) effective from October 12, 2005, but no earlier, is granted. FINDINGS OF FACT 1. For the period from April 11, 2005, to February 28, 2012, the Veteran’s lumbar spine was manifested by flexion limited to, at most, 90 degrees. There is no evidence of incapacitating episodes, ankylosis, or bowel or bladder impairment. 2. From February 28, 2012, the Veteran’s lumbar spine is not manifested by ankylosis. There is no evidence of incapacitating episodes during the past 12 months. There is no evidence of bowel or bladder impairment. 3. The Veteran’s left knee disability is manifested by decreased motion and pain, with flexion limited to 100 degrees, but there is no evidence of ankylosis at any point during the appeal. 4. The Veteran’s right knee disability is diagnosed as degenerative joint disease of the right knee with partial removal of the meniscus. 5. From December 22, 2017, the Veteran is entitled to a separate rating of 10 percent for limitation of extension of the right knee. 6. The Veteran’s surgical scars on the left knee are not covering an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), affecting the underlying soft tissue, or described as painful or unstable. 7. The Veteran’s surgical scars on the right knee are not covering an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), affecting the underlying soft tissue, or described as painful or unstable. 8. For the period from March 11, 2005 to October 11, 2005, the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude him from securing and following substantially gainful employment. 9. Effective from October 12, 2005, the evidence supports a finding that the Veteran’s service-connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. For the period from April 11, 2005 to February 28, 2012, the criteria are not met for a rating in excess of 10 percent for the lumbar spine disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Code 5237. 2. From February 28, 2012, the criteria are not met for a rating in excess of 40 percent for the lumbar spine disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Code 5237. 3. The criteria for a rating in excess of 10 percent for the left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 4. The criteria for a rating in excess of 20 percent for the right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 5. From December 22, 2017, the criteria are met for a separate 10 percent rating for limitation of extension of the right knee. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 6. The criteria for a compensable rating for scars on the left knee have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7805. 7. The criteria for a compensable rating for scars on the right knee have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7805. 8. For the period from March 11, 2005 to October 11, 2005, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 9. Effective from October 12, 2005, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1980 to January 1984 and April 1984 to August 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, as well as a November 2011 rating decision by the VA Appeals Management Center (AMC). In November 2010, June 2012, April 2017, and November 2017, the Board remanded this matter for further development. The requested actions have been completed and the appeal is once again before the Board. Further, a June 2009 rating decision awarded the Veteran a TDIU, effective from February 1, 2009. However, as the relevant appeals period of the disabilities upon which the claim for a TDIU is predicated is from March 11, 2005, the date of receipt of the claim for an increased rating for the right knee disability, the Board finds that the claim of entitlement to a TDIU prior to February 1, 2009 is part and parcel of the increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this respect, as addressed in Harper v. Wilkie, 30 Vet. App. 356 (2018), where a Rice TDIU claim has been raised, and the grant of TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the remaining period for which TDIU was not granted or considered, remains in appellate status. As such, the Board has jurisdiction over the matter of entitlement to a TDIU prior to February 1, 2009. Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2018); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018). Finally, the Veteran has been found to be disabled by the Social Security Administration (SSA) due to osteoarthritis, with a secondary disability of affective/mood disorders. Nevertheless, while the evidence considered by the SSA has been reviewed, the Board is not bound by those findings. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA is not bound by the findings of disability and/or unemployability made by other agencies); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while an SSA decision is not controlling for purposes of VA adjudication, it is “pertinent” to a Veteran’s claim). 1. Lumbar Spine The Veteran is seeking an initial rating in excess of 10 percent for a low back disability prior to February 28, 2012, and a rating in excess of 40 percent thereafter, pursuant to Diagnostic Code 5237. Diagnostic Code 5237 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (2018). Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. As described above, the higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, Diagnostic Code 5242. The Court, citing Dorland’s Illustrated Medical Dictionary (28th ed. 1994), has recognized that ankylosis is defined as “immobility and consolidation of a joint due to disease, injury or surgical procedure,” for VA compensation purposes. See Colayong v. West, 12 Vet. App. 524, 528 (1999). The General Rating Formula for Diseases and Injuries of the Spine, provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Otherwise, disabilities of the spine are rated according to the number of incapacitating episodes a person has had in the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See Note (1) to Diagnostic Code 5243. Under the formula, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 month period, a 20 percent rating is assigned for incapacitating episodes having a total duration between 2 to 4 weeks during the past 12 month period, a 40 percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period, and a 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Here, the Regional Office (RO) granted the Veteran separate ratings for both right and left lower extremity radiculopathy in a July 2017 rating decision. However, the Veteran did not appeal the rating decision establishing the rating for either the right or left lower extremity or effective dates. In Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (en banc) the Court recognized that VA has broad discretion to dismember a claim and adjudicate the pieces in jurisdictionally separate proceedings. See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (“Bifurcation of a claim generally is within VA’s discretion.”). Therefore, the Board need not consider the evidence pertaining to right and left lower extremity radiculopathy. Period from April 11, 2005 to February 27, 2012 For the period from April 11, 2005 to February 27, 2012, the evidence of record includes VA examinations dated in December 2005 and May 2008, and VA private treatment records. In the December 2005 VA examination, conducted in connection with his claim for service connection, the examiner noted the Veteran’s report of flare-ups with heaving lifting or prolonged standing. The Veteran reported pain in the lower back, with some stiffness but no weakness or radiations. He denied bowel or bladder impairment. The functional impact of the flare-ups includes limitations for heavy lifting and prolonged standing. Range of motion testing revealed flexion to 90 degrees, with no pain; extension to 30 degrees, with pain after 25 degrees; right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees, all without pain. The Veteran was able to perform repetitive use testing with no additional limitation in range of motion, incoordination, fatigue, or lack of endurance. The examiner noted some tenderness, but there was no evidence of effusion, spasms, or muscle atrophy. Muscle strength testing, deep tendon reflexes, and sensory examination were all normal. The examiner did not find evidence of any neurological impairments, including radiculopathy and bowel or bladder impairments. Finally, there was no evidence of ankylosis or IVDS. The Veteran was next examined by VA in May 2008, in connection with his appeal for a higher initial rating. At that time, the Veteran reported pain in the center of the lumbar area without radiation. He uses anti-inflammatories and can get flare-ups with any strenuous activity. The Veteran reported the use of a cane. He also reported that he has missed 3 weeks in the past year because of his back, as he has been assigned bedrest by his doctor after an incapacitating episode. Range of motion testing revealed flexion to 90 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 25 degrees, with pain at the endpoints of all motions. There was no evidence of fatigue, weakness, or lack of endurance. The examiner noted repetitive motion did not increase loss in range of motion. Further, the examiner stated it would be mere speculation to estimate range of motion loss with a flare-up. The examiner noted there was no evidence of tenderness, spasms, weakness, or muscle atrophy. Muscle strength testing, deep tendon reflexes, and sensory examination were all normal. The examiner did not find evidence of any neurological impairments, including radiculopathy and bowel or bladder impairments. Finally, there was no evidence of ankylosis or IVDS. Additionally, the Veteran’s VA and private treatment records show his continuous complaints of pain associated with his low back disability beginning in 2005. However, there are no objective range of motion findings or clinical findings in these treatment records that are materially different from the objective findings noted in the December 2005 and May 2008 VA examinations. For the first period on appeal, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for his service-connected low back disability. In particular, the Board acknowledges the Veteran’s complaints of back pain, which the record clearly documents. However, the Veteran’s flexion was limited, at most, to 90 degrees, even when considering any reported pain during his May 2008 VA examination. His combined range of motion was 240 degrees in December 2005 and 170 degrees in May 2008. Additionally, while the Veteran reported flare-ups in both examinations, he indicated they were in the form of pain with strenuous lifting/ activity or prolonged walking. With respect to functional loss, both examinations noted pain, but no additional limitations on repetitive motion, or resulting in functional loss. Regardless, the evidence shows that the Veteran’s range of motion for flexion was well in excess of 60 degrees, which is required for the next higher 20 percent rating for the period prior to February 28, 2012. Therefore, the Board finds that even when considering the functional limitations of less movement than normal as identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca v. Brown and Mitchell v Shinseki, the Veteran’s functional loss did not equate to the criteria required for a 20 percent rating when considering the cumulative picture of his low back disability for the first period on appeal. 8 Vet. App. 202 (1995), 25 Vet. App. 32 (2011). Further, to the extent the December 2005 and May 2008 VA examinations did not comply with the holdings in Correia or Sharp, either individually or collectively, such non-compliance is harmless error. 28 Vet. App. 158 (2016), 29 Vet. App. 26 (2017). In this respect, while the Veteran reported flare-ups, the Veteran reported it was only when engaged in strenuous lifting/ activities or prolonged standing and did not result in additional loss in range of motion or functional impairment. Finally, there was no evidence of pain on weight-bearing at any point during either examination. As for whether the Veteran is entitled to a rating in excess of 10 percent rating for IVDS, neither the December 2005 nor the May 2008 examinations include any evidence of IVDS. The Board notes the Veteran reported missing 3 weeks of time due to incapacitating episodes as prescribed by a doctor. However, his private treatment records do not reflect this finding. There is no other medical evidence, aside from what has been discussed in detail above, which would support the Veteran’s contentions that his lumbar spine disability has increased in severity beyond the currently assigned 10 percent rating for this first period on appeal. Period Since February 28, 2012 For the period since February 28, 2012, the Veteran is currently rated at 40 percent. The objective evidence of record for this period includes VA and private treatment records dated since February 28, 2012, and the reports of VA examinations conducted in January 2016, June 2017, and December 2017. A February 2016 addendum to the January 2016 examination is also of record. The next higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, Diagnostic Code 5243. Alternatively, the next higher rating for IVDS of 60 percent requires incapacitating episodes having a total duration of at least 6 weeks in the past 12 months. Id. Neither requirement has been met. Specifically, the February 28, 2012 VA treatment record upon which the award of the 40 percent rating was granted showed flexion to 20 degrees and significant pain. However, there was no evidence of ankylosis. Further, in relevant part, the Board notes the Veteran consistently reported flare-ups during the January 2016, June 2017, and December 2017 VA examinations. Range of motion testing revealed flexion to 30, 60, and 40 degrees, respectively. The examiners all determined there was no evidence of ankylosis during any of these examinations. As for neurological manifestations, aside from radiculopathy which has been separately adjudicated, the VA examiners each determined there was no evidence of other neurological manifestations, such as bowel or bladder impairment. The examiners also indicated the Veteran does not have IVDS. Additionally, for the period on appeal since February 28, 2012, there are a significant number of VA and private treatment records. Unfortunately, these treatment records do not contain any evidence that the Veteran suffers from ankylosis or that he has had at least 6 weeks of incapacitating episodes within a 12-month period to warrant the higher 50 and 60 percent ratings, respectively. Therefore, even considering any additional functional impact of the Veteran’s lumbar spine as noted above and his reports of pain, the fact remains the Veteran retains motion in his lumbar spine, albeit limited, which precludes a finding of ankylosis. The Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran’s functional loss does not equate to the criteria required for a 50 percent rating. Further, to the extent the January 2016, June 2017, and December 2017 VA examinations and February 2016 addendum failed to comply with the holdings in Correia or Sharp, either individually or collectively, such non-compliance is harmless error. In this respect, the Court in Johnston v. Brown, indicates that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. 10 Vet. App. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). Thus, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis of other symptoms unrelated to limitation of motion, 38 C.F.R. §§ 4.40 and 4.45 are not for application. As for whether the Veteran is entitled to the higher 60 percent rating, which requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243, the VA examiners all determined there is no evidence that the Veteran suffers from IVDS. Thus, he is not entitled to the higher 60 percent rating based on incapacitating episodes. There is no additional medical evidence, as discussed in detail above, which would support the Veteran’s contentions that his lumbar spine disability has increased in severity beyond the currently assigned 40-percent rating. In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of his low back disability. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his back. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through written statements throughout the course of his appeal with respect to the presence of pain and the severity of such during his VA examinations. He is competent to provide such statements, and the Board finds that the Veteran’s statements are credible. The Veteran’s reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran’s reports with respect to pain in evaluating his assigned rating. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (“[t]he probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.”). As a preponderance of the evidence is against the award of an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 2. Right and Left Knee disabilities Diagnostic Codes 5260 and 5261 provide for ratings based on limitation of motion of the knee. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5262, regarding impairment of the tibia and fibula, warrants a 10 percent disability rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent disability rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent disability rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum schedular 40 percent disability rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The terms “slight,” “moderate,” and “marked” are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98 (Aug. 1998). Moreover, the General Counsel also held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (Sept. 2004). Finally, under 38 C.F.R. § 4.71a (2018), which sets forth the schedular rating criteria for the musculoskeletal system, Diagnostic Code 5010 directs VA to rate arthritis due to trauma under degenerative arthritis, or Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis is to be evaluated on the basis of limitation of motion as per the diagnostic codes for the specific joint or joints. Id. If, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating can be assigned where there is x-ray evidence of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating can be assigned if such involvement includes occasional incapacitating episodes. Id. Note (1) under Diagnostic Code 5003 provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. Facts As an initial matter and for the sake of brevity, the Board will discuss the findings regarding the right and left knee disabilities as noted in the VA treatment records, private treatment records, and numerous VA examinations of record. The Veteran was initially service connected for status post arthroscopic partial meniscectomy with degenerative changes of his right knee in a May 1990 rating decision, wherein the Veteran was assigned a rating of 10 percent under diagnostic code 5257-5003. In connection with his March 11, 2005 claim for an increased rating for his right knee disability, the Veteran’s knees were evaluated in a VA examination in April 2005. See April 2005 VA Joints Examination. The examiner noted the Veteran’s history of a torn meniscus and meniscectomy in 1988 with degenerative post-traumatic changes. The Veteran reported pain, swelling, and stiffness. He denied locking of the knee, but reported it gave way occasionally. The Veteran reported flare-ups of the right knee approximately one time a month resulting in an inability to bend the knee, necessitating bedrest. The Veteran used a brace. Upon examination, the examiner noted there was no evidence of subluxation, dislocation, and inflammatory arthritis. Range of motion testing revealed flexion to 110 degrees and extension to 0 degrees, with minimal discomfort. There was no abnormality to varus or valgus stress. Some tenderness over the medical aspect of the joint space and light effusion, pain, and partial removal of the right meniscus was noted. Strength testing in the right knee was found to be 4/5, and sensory examination was essentially unremarkable. The examiner indicated that repetitive motion does not change the examination. Finally, as for any impact on the Veteran’s employability as a result of the right knee disability, he reported he lost about 5 weeks of work as a regional, self-employed truck driver. However, he was working full time. The Veteran was evaluated by Primary Care in April 2005, where he reported that he had swelling and pain to the right knee daily and constant popping to the knee. It was noted that he was recently seen at the Emergency Room and diagnosed with moderate severe degenerative joint disease of the right knee. It was also noted that the Veteran’s left knee was beginning to bother him due to the altered gait from his right knee. Notably, the progress notes reflect that the Veteran has pain of the right and left knee. See June 2005 Fayetteville VA Medical Center (VAMC) Progress Notes. As to his Emergency Room visit it was recorded that the Veteran’s right knee had mild swelling, tenderness on palpation in suprapatellar area, increased pain on flexion, and crepitus, with no restriction of range of motion. See March 4, 2005, Fayetteville Emergency Room Note. The rating for his right knee was increased to 20 percent under diagnostic code 5003-5262 after this evidence was reviewed. The Veteran was next examined by VA in December 2005 in connection with the additional claim of entitlement to service connection for the left knee. At that time, the Veteran reported flare-ups of right knee pain when squatting or with prolonged walking or stand. He intermittently used a knee brace. The Veteran denied episodes of dislocation or inflammatory arthritis of either the left or the right knees. Upon examination of the right knee, flexion was found to 130 degrees, with pain at the endpoint, and extension to 0 degrees. There was tenderness over the anterior medial aspect of the right knee with some effusion. There was no evidence of muscle atrophy, muscle spasms, or instability. Repetitive use showed no fatigue, incoordination, lack of endurance, or additional loss of motion due to pain. Upon examination of the left knee, flexion was found to 140 degrees, with pain at the endpoint, and extension to 0 degrees. There was mild tenderness over the lateral aspect of the left knee, but no evidence of effusion, muscle atrophy, muscle spasms, or instability. Repetitive use shows no fatigue, incoordination, lack of endurance, or additional loss of motion due to pain. The Veteran was assigned a rating of 10 percent for left knee strain in a January 2006 rating decision as secondary to his right knee disability due to an altered gait under Diagnostic Code 5260. The Veteran was next examined by VA in May 2008. The Veteran reported flare-ups of the knees with prolonged standing, walking, or strenuous activity. He reported pain. The Veteran also stated he has missed approximately 2 weeks of work as a truck driver in the past years due to his knees. There was no evidence of inflammatory arthritis, dislocation, or subluxation. Upon physical examination, range of motion testing revealed extension to 0 degrees, bilaterally. Flexion for the right knee was to 90 degrees, and 110 degrees in the left. Pain was noted at the endpoints. There was no fatigue, weakness, or lack of endurance. Repetitive motion did not increase loss in range of motion and the examiner stated it would be mere speculation to estimate range of motion during a flare-up. There was evidence of painful motion but no evidence of edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, guarding of movement or ankylosis. The examiner stated that weight bearing was fair, the Veteran uses a cane, and walks with a limp. The Veteran was next examined by VA in January 2016. The Veteran reported flare-ups of the knees with prolonged standing or walking, described as severe and occurring monthly. As a result of his flare-ups, the Veteran reported functional limitation in bending, crawling, standing for a long time, sitting, squatting, and going up and down stairs. Upon physical examination of the right knee, range of motion testing revealed extension to 0 degrees, and flexion to 90 degrees. There was no pain noted on examination but there was pain on weight-bearing. There was no evidence of tenderness or crepitus. The Veteran was able to perform repetitive use testing with no additional loss in range of motion. Upon physical examination of the left knee, range of motion testing revealed extension to 0 degrees and flexion to 105. There was no pain on examination, pain on weight-bearing, or tenderness. However, the examiner did find crepitus in the left knee. The Veteran was able to perform repetitive use testing which resulted in flexion to 100 degrees. For both knees, as to whether pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time, the examiner stated the exam was insufficient to evaluate. The examiner was similarly unable to evaluate functional ability during a flare-up as one did not occur during the examination. The examiner noted no evidence of deceased muscle strength, muscle atrophy, instability in the right knee, subluxation, or ankylosis. The Veteran did indicate joint instability in the left knee, but the examiner stated that the Veteran maintained too much resistance in the left leg and knee to perform the testing. The Veteran also reported frequent episodes of joint locking and pain, bilaterally, as a result of his meniscectomy surgeries on each knee. X-ray findings revealed traumatic arthritis of the left knee. The Veteran reported that he required the regular use of a cane for his right knee disability. The Veteran was again examined by VA in June 2017. The Veteran again reported flare-ups of the right and left knees, described as pain with activities and movement, or weather changes. The Veteran reported limited mobility as a functional limitation during the flare-ups. Upon physical examination, range of motion testing revealed extension to 0 degrees, and flexion to 115 degrees, bilaterally. There was pain noted on examination and pain on weight-bearing, with evidence of crepitus. Specifically, as for the Correia requirements, the examiner noted objective evidence of pain on passive range of motion testing and pain on non-weight bearing testing of the right and left knees. There was no evidence of tenderness. The Veteran was able to perform repetitive use testing with no additional loss in range of motion. The examiner noted pain, fatigue, and lack of endurance significantly limited functional ability over time; however, there was no change in range of motion of either knee. Similarly, the examiner noted pain, fatigue, and lack of endurance significantly limited functional ability during a flare-up. Range of motion of the knees, bilaterally, during a flare-up was found to be to 110 degrees flexion and 0 degrees extension. The examiner noted no evidence of deceased muscle strength, muscle atrophy, instability, subluxation, or ankylosis. X-ray findings revealed arthritis of the right knee. The Veteran reported he required the constant use of a cane for his knee disabilities. Finally, the Veteran was most recently examined by VA in December 2017. At that time, the Veteran described giving way, buckling, and decreased range of motion in both knees, with the right worse than the left. He also reported pain, swelling, stiffness, and increased pain with prolonged sitting, standing and walking. Reports pain in knees is constant. He reported flare-ups, bilaterally, occurring once every 9 months with severe and constant pain. Upon physical examination of the right knee, range of motion testing revealed extension to 5 degrees, and flexion to 105 degrees. There was pain noted on examination, pain on weight-bearing, and crepitus. There was no evidence of tenderness. The Veteran was able to perform repetitive use testing with no additional loss in range of motion. Upon physical examination of the left knee, range of motion testing revealed extension to 0 degrees and flexion to 115 degrees. There was pain noted on examination, pain on weight-bearing, and crepitus. There was no evidence of tenderness. The Veteran was able to perform repetitive use testing with no additional loss in range of motion. For both knees, as to whether pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time, the examiner stated a determination was not available due to mere speculation. As rationale, the examiner noted there is no conceptual or empirical basis for making such a determination without directly observing function under those conditions. The examiner was similarly unable to evaluate functional ability during a flare-up for the same reasons. The examiner indicated additional contributing factors of swelling and disturbance in locomotion. The examiner noted no evidence of deceased muscle strength, muscle atrophy, instability, subluxation, effusion, or ankylosis. X-ray findings revealed traumatic arthritis of the left knee. The Veteran reported he required the constant use of a cane. As for the Correia factors, the examiner also noted objective evidence of pain on non-weight bearing and passive motion, bilaterally. Also of record are significant VA and private treatment records detailing the Veteran’s consistent complaints of pain associated with the right and left knees. While these records show the Veteran has continued to seek treatment for his disabilities throughout the appeals period, they do not contain any objective findings that are materially different from those discussed in the numerous VA examinations above. See generally March 2010 Private Treatment Record from Dr. S.G. Left Knee The Veteran is seeking entitlement to an initial rating of 10 percent pursuant to Diagnostic Code 5260. He asserts that the rating does not consider his functional loss due to pain or consider his knee brace and his walking cane. The Board finds that the Veteran’s flexion has been limited to, at worst, 100 degrees, which is greater than the requirement for even a noncompensable evaluation under Diagnostic Code 5260, which requires flexion limited to 60 degrees. Similarly, the Board finds that the Veteran’s extension has always been found to be to 0 degrees, which is full extension pursuant to Diagnostic Code 5261. In order to warrant even a noncompensable evaluation, extension must be shown to be limited to 5 degrees. Thus, a compensable rating under Diagnostic Code 5260 or a separate rating under Diagnostic Code 5261 is not warranted. The Board has considered whether a separate or higher evaluation is warranted under an alternate diagnostic code. The preponderance of the evidence, however, weighs against a finding of ankylosis; dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the knee joint; symptomatic removal of semilunar cartilage; or, malunion or nonunion of the tibia and fibula. Therefore, a separate or increased rating for left knee symptomatology pursuant to Diagnostic Codes 5256, 5258, 5259, or 5262, is not warranted. The Board notes the Veteran reported instability of the left knee during the January 2016 VA examination. However, upon physical examination, the VA examiner determined there was no objective findings to support instability or subluxation. Thus, a separate rating is not warranted pursuant to Diagnostic Code 5257. Additionally, whether the Veteran’s knee disability resulted in a level of functional loss greater than that already contemplated by the assigned rating at any point during the appeal period has also been considered. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, the VA examinations and treatment records note the left knee disability was characterized by pain and limitation of flexion. However, the rating schedule is intended to allow for compensation for painful motion of a joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, while the Veteran argues that his currently assigned 10 percent rating does not consider functional loss due to pain or while using his brace or cane, the evidence of record does not support this argument. Specifically, the Board acknowledges that the multiple VA examinations of record note pain on motion. However, as discussed above, his flexion has never been limited to more than 100 degrees, which is significantly greater than is required for a noncompensable evaluation pursuant to Diagnostic Code 5260. In fact, his currently assigned 10 percent rating specifically contemplates the noted presence of pain and any functional limitations resulting from this disability as he is not entitled to a compensable rating based on his range of motion findings at any point during the appeals period. Thus, the evidence does not reflect functional loss that is not already contemplated by the assigned rating of 10 percent. Further, to the extent the VA examinations failed to comply with the holdings in Correia or Sharp, such non-compliance is harmless error because a higher rating is not available based on the objective findings of the numerous VA examiners with respect to the range of motion findings. The Veteran reported experiencing flare-ups occurring one time a month (January 2016 VA examination) to once every 9 months (December 2017). Regardless, even during a flare-up, the Veteran’s flexion was found to be limited to most, 110 degrees. Further, to the extent there was pain on weight-bearing or non-weight bearing, the Diagnostic Code currently specifically encompasses this consideration in assigning the 10 percent rating based on limitation of flexion. In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of his left knee disability. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his knee. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through written statements throughout the course of his appeal with respect to the presence of pain. He is competent to provide such statements, and the Board finds that the lay statements of record to be credible. The Veteran’s reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran’s reports with respect to pain in evaluating his assigned rating. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (“[t]he probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.”). Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Right Knee The Veteran is seeking entitlement to a rating in excess of 20 percent for the right knee disability pursuant to Diagnostic Code 5003-5262. 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, diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Code 5262 provides ratings for impairment of the tibia or fibula, assigning ratings for malunion of the tibia and fibula with “knee or ankle disability” or nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a. The Board finds that the assignation of this particular Diagnostic Code is inappropriate given the Veteran’s disability, which has been diagnosed as degenerative joint disease with partial removal of the meniscus. In this respect, Diagnostic Code 5262, impairment of the tibia or fibula with knee or ankle disability is not shown. In fact, there is simply no evidence in either the VA examinations or the VA and private treatment records that show malunion or nonunion of the tibia and fibula, or any impairment of the right leg. Moreover, there is no evidence that would warrant the next higher 30 percent rating which requires malunion of the tibia and fibula with marked knee or ankle disability. Therefore, the Board finds the appropriate diagnostic code for this disability is 5258, for cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion of the joint, which warrants a 20 percent rating, as the Veteran’s right knee disability is diagnosed as degenerative joint disease with partial removal of the meniscus. As an initial matter, a higher evaluation is not available under Diagnostic Code 5003 or 5258, as 20 percent is the highest available rating under either code. Turning to other potentially relevant diagnostic codes for which separate ratings may be assigned, the Board notes there is no evidence of ankylosis of the right knee (Diagnostic Code 5256) or genu recurvatum (Diagnostic Code 5263). As such, those codes need not be discussed further. Pursuant to Diagnostic Code 5257, a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. However, here, none of the VA examinations noted lateral instability or subluxation at any point during the pendency of the examination. The Veteran himself only reports occasional giving way in the April 2005 VA examination, but the examiner did not find any objective evidence of instability. Therefore, a separate rating based on instability is not warranted. As for limitation of motion, evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. Diagnostic Code 5261. Here, the Veteran’s flexion has been limited to, at most 90 degrees. See VA examinations dated in May 2008 and January 2016). Therefore, even when considering the presence of pain, as has been consistently noted, the Veteran’s range of motion of the right knee is well in excess of the minimum requirement for a compensable rating. As for the limitation of motion based on limitation of extension, affording the Veteran all reasonable doubt, the Board finds that a separate rating of 10 percent is warranted from December 22, 2017, which noted limitation of extension to 5 degrees. However, as the Veteran and examiner both reported pain on motion, the Board finds that the rating of 10 percent is appropriate to compensate the Veteran for any functional loss he experiences as a result of that pain. See December 2017 VA Examination. As there has been no objective evidence of loss of motion on extension at any point prior to the December 22, 2017 VA examination, a separate rating is not warranted prior to that date. Additionally, whether the Veteran’s knee disability resulted in a level of functional loss greater than that already contemplated by the assigned ratings at any point during the appeal period has also been considered. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, the VA examinations and treatment records note the right knee disability was characterized by pain. However, the rating schedule is intended to allow for compensation for painful motion of a joint and the separately assigned 10 percent rating based on limitation of extension, effective from December 22, 2017, further contemplates any additional functional loss. 38 C.F.R. §4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Thus, the evidence does not reflect functional loss that is not already contemplated by the assigned ratings of 20 percent pursuant to Diagnostic Codes 5258 or 5261. In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of his right knee disability. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his knee. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through written statements throughout the course of his appeal with respect to the presence of pain. He is competent to provide such statements, and the Board finds the lay statements of record be credible. The Veteran’s reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran’s reports with respect to pain in evaluating his assigned rating. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (“[t]he probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.”). Accordingly, a separate rating of 10 percent for limitation of extension of the right knee is warranted from December 22, 2017. However, as it pertains to any other ratings of the right knee, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. Scars The Board notes that the evidence also shows the Veteran’s scars on each the right and left knees associated with his prior meniscectomies in 1986 and 2011, respectively. As these scars are part of his disability, the Board must also address whether he is entitled to separate compensable ratings. During the pendency of this appeal, VA recently published a final rule amending its regulations on skin disabilities effective August 13, 2018. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. However, “the case law is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive.” Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011) (citing Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003)). Here, the recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, for the period beginning August 13, 2018, the version more favorable to the Veteran will apply. Under the scar regulations in effect prior to August 13, 2018, scars that, as here, do not impact the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805. Under Diagnostic Code 7801, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § § 4.118, Diagnostic Code 7801 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7802, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is superficial and nonlinear, and covers an area of at least 144 square inches (929 sq. cm.) 38 C.F.R. § § 4.118, Diagnostic Code 7802 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable of painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § § 4.118, Diagnostic Code 7804 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7805, any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § § 4.118, Diagnostic Code 7805 (in effect from October 23, 2008 to August 13, 2018). Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 square centimeters) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 square centimeters) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 square centimeters) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 square centimeters) are rated as 40 percent disabling. 38 C.F.R. § § 4.118, Diagnostic Code 7801 (in effect since August 13, 2018). Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) or greater is rated as 10 percent disabling. 38 C.F.R. § § 4.118, Diagnostic Code 7802 (in effect since August 13, 2018). Diagnostic Code 7804 provides ratings for scars that are unstable or painful. One or two scars that are unstable or painful are rated as 10 percent disabling. Three or more scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to DC 7804 provides that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. 38 C.F.R. § § 4.118, Diagnostic Code 7804 (in effect since August 13, 2018). Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect since August 13, 2018). Here, the VA examinations discussed above found the following as it pertains to the left knee scar: anterior scar measuring 0.5 centimeters (cm) by 0.1 cm; medial scar measuring 1 cm by 0.5 cm; superolateral scar measuring 1 cm by 0.5 cm; and, inferolateral scar measuring 1 cm by 0.5 cm. None of these scars were found to be either tender or painful (June 2017 and December 2017 VA examinations). As it pertains to the right knee, the findings were as follows: no tissue breakdown, elevation, depression, or tenderness (April 2005 VA examination). The measurements of the lateral scar are 1 cm by 0.5 cm, superomedial scar 1 cm by 0.5 cm, and inferomedial scar is 1 cm by 0.5 cm. Again, none of the scars were found to be tender or painful (June 2017 and December 2017 VA examinations). The Veteran’s treatment records do not document any complaints or treatment for the scars during the pendency of this appeal, noting only the existence of the scars during his various examinations. Thus, the Veteran’s medical records do not document any deep scars, unstable scars, or painful scars. Based on the evidence as discussed above, the Board does not find the Veteran is entitled to a separate compensable rating for the scars associated with his right and left knee disabilities. Here, the objective findings noted in the VA examinations do not warrant compensable ratings under Diagnostic Codes 7801, 7802, or 7804 either prior to or since August 13, 2018, as the scars do not cover an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.) (Diagnostic Code 7801); cover an area of at least 144 square inches (929 sq. cm.) (Diagnostic Code 7802); or, are described as painful or unstable (Diagnostic Code 7804). Accordingly, as the preponderance of the evidence is against a finding the Veteran is entitled to a separate compensable rating for his scars on the left and right knees, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). TDIU The Veteran is seeking entitlement to a TDIU prior to February 1, 2009, on the basis that he is unable to secure or follow substantiality gainful employment as a result of his service-connected disabilities. As a jurisdictional matter, the Board notes that the Veteran’s TDIU has been granted from the date of receipt of his claim for this disability, as evidenced by the VA Form 21-8940, received on February 1, 2009. However, as his claim of entitlement to a TDIU is predicated, at least in part, on his service-connected right knee disability (see VA Form 21-8940), the issue arises within the same timeline as the claim for a higher rating for the right knee disability, so from March 11, 2005. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). For the period from March 11, 2005 to October 12, 2005, the Veteran has a combined disability rating of 50 percent, which includes the 20 percent rating for the right knee disability, 10 percent for the lumbar spine, and 10 percent for the left knee. This rating does not meet the schedular requirement for a TDIU, even when considering they all arise from the musculoskeletal system and include the application of the bilateral factor for the right and left knee disabilities. For the period since October 12, 2005 to February 1, 2009, the Veteran has a combined rating of 80 percent, that now includes a 70 percent rating for posttraumatic stress disorder (PTSD). Thus, the schedular requirements for a TDIU have been met. Nevertheless, a TDIU may still be available for the period prior from March 11, 2005 to October 11, 2005 if the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). As such, pursuant to 38 C.F.R. § 4.16(b), consideration must be given as to whether the Veteran is entitled to a TDIU on an extraschedular basis. In this regard, the Board notes that, for a Veteran to prevail on a claim for TDIU, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. Significantly, however, the Board does not have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating). It may, however, determine that a particular case warrants referral to the Director of Compensation and Pension for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. § § 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. 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 a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the 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. 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 a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability 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, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (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) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In this case, the evidence of record does show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from October 12, 2005. Specifically, the Veteran has been afforded numerous VA examinations, the first dated in April 2005, that noted the Veteran was a self-employed truck driver who reported losing 5 weeks of work due to his right knee disability. However, he also stated he was employed fulltime. Thereafter, however, the December 2005 psychiatric examination upon which the claim of entitlement to PTSD was granted, noted the Veteran was unemployed. He specifically stated he kept changing jobs for fear of not passing a physical. This statement was reiterated during his joint examination, also conducted in December 2005. In fact, as discussed in detail above, it has been consistently noted the Veteran’s right knee, left knee, and low back disabilities preclude prolonged standing or sitting, and strenuous activity. The evidentiary standard for TDIU opinions is not whether the average person would be precluded from substantially gainful employment, but whether the specific Veteran would be so precluded as a result of service-connected disabilities, alone or in combination. Here, the evidence shows the Veteran was previously employed as a truck driver, which is an occupation requiring significant sitting and strenuous activity in the loading and unloading of cargo. Thus, when considering this specific Veteran’s disabilities in connection with his employability, the evidence of record establishes entitlement to TDIU effective from October 12, 2005, the date the Veteran met the schedular requirements for a TDIU and also indicated it is the date from which he has been unemployed. However, for the period from March 11, 2005 to October 12, 2005, the April 2005 examination reflects the Veteran was then employed and had been for the past 15 years. While there was some limitation as to his physical capabilities due to the right knee, there appears to be marked decline due to the combination of all of his service-connected disabilities thereafter. Therefore, while the Board readily acknowledges that the Veteran’s service-connected disabilities do limit some physical activities, in light of the Veteran’s overall disability picture, the evidence does not show that he is precluded from securing or following any substantially gainful occupation as a result of his service-connected disabilities prior to October 12, 2005. See Withers v. Wilkie, 30 Vet. App. 139 (2018). Based on the foregoing, the Board concludes that this case does not present any unusual or exceptional circumstances that would justify a referral of the total rating claim to the Director of the VA Compensation and Pension Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b) for the period prior to October 12, 2005. However, effective from October 12, 2005, the evidence is sufficient to award a TDIU pursuant to 38 C.F.R. § 4.16(a). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.