Citation Nr: 20042387 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 16-55 199 DATE: June 23, 2020 ORDER 1. Entitlement to an increased disability rating in excess of 40 percent for left knee status post unicompartmental medial replacement from April 1, 2015 to September 13, 2017 is denied. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From April 1, 2015 to September 13, 2017, the Veteran’s left knee status post unicompartmental medial replacement was manifested by no worse than intermediate degrees of residual weakness, pain, or limitation of motion, including limitation of extension to no more than 30 degrees, without chronic residuals consisting of severe painful motion or weakness in the affected extremity. 2. For the entire period on appeal, the Veteran has not been precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 40 percent for left knee status post unicompartmental medial replacement from April 1, 2015 to September 13, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5261 (2019). 2. The criteria for a TDIU rating have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1978 to January 1981. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2020 videoconference hearing and a transcript of the hearing has been associated with the claims file. The Board notes that the Veteran is in receipt of several temporary total disability ratings based upon convalescence following left knee surgeries, including during the appeal period from December 10, 2013 through March 31, 2015. During this stated rating period, the temporary total rating constitutes a complete grant and, thus, it is not on appeal. Similarly, the Veteran has clarified, including at the February 2020 hearing, that he is not appealing the currently assigned 60 percent disability rating for left above knee amputation from September 13, 2017. As such, the Board has limited its consideration of the Veteran’s left knee increased rating claim to the relevant staged period from April 1, 2015 to September 13, 2017. 1. Entitlement to an increased disability rating in excess of 40 percent for left knee status post unicompartmental medial replacement from April 1, 2015 to September 13, 2017. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The Veteran’s left knee status post unicompartmental medial replacement is currently rated as 40 percent disabling from April 1, 2015 to September 13, 2017 under DC 5055-5261. See 38 C.F.R. § 4.71a, DCs 5055, 5261 (2019). Under DC 5055, a 100 percent disability rating is warranted for one year following implantation of prosthesis. Thereafter, a minimum 30 percent disability rating is warranted. With intermediate degrees of residual weakness, pain, or limitation of motion, the disability is to be rated by analogy to DCs 5256, 5261, or 5262 regarding ankylosis of the knee, limitation of motion of the leg, or impairment of the tibia and fibula, respectively. Where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent disability rating is warranted. Under DC 5256, in relevant part, ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5261, in relevant part, limitation of extension of a leg to 30 degrees warrants a 40 percent disability rating; and limitation of extension to 45 degrees warrants a maximum schedular 50 percent disability rating. Under DC 5262, in relevant part, a maximum 40 percent disability rating is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. Following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to an increased disability rating in excess of 40 percent for left knee status post unicompartmental medial replacement from April 1, 2015 to September 13, 2017. VA treatment records document that following his February 2014 left knee surgery, the Veteran was next seen in October 2016, when he reported chronic left knee pain following knee replacement surgery done “a few years ago” and complained of increasing left knee pain and swelling for the past three weeks. He denied recent injury or trauma and stated that his knee felt the same as with past episodes of osteoarthritis. He denied other symptoms or problems. The following month, in November 2016, the Veteran contacted the VA Medical Center and stated that his knee condition had worsened since his last knee surgery. He reported pain from just above the knee to his ankle, which caused his leg to constantly give out, severe pain at times that made him cry, and swelling with oozing puss or liquid. A VA physician responded and noted that the Veteran was last seen in 2014. He stated that the Veteran should schedule an appointment given the symptoms he was reporting and noted that if the symptoms were very bad, the Veteran could be seen at the VA emergency room to be evaluated. Upon follow-up in March 2017, the Veteran reported that his left knee swelled up like a basketball every day. He used a cane for ambulation. His surgical history was noted, including a December 2013 removal of a total knee prosthesis and insertion of an antibiotic spacer and a February 2014 removal of an articulating antibiotic spacer, and left knee total knee arthroplasty revision. Range of motion of the left knee was noted as “19-56 degrees,” and the Veteran’s condition was assessed as left knee arthrofibrosis status post multiple procedures, without clear evidence that any infection had been present from a records review. In June 2017, the Veteran reported ongoing symptoms and provided pictures of his left knee, which were noted to appear as if the skin was moist, but without any pus. The Veteran requested a left leg amputation because he was having such difficulty with pain, swelling, and activities of daily living. His left knee range of motion was noted as “21-61” degrees. Due to the pain and swelling to his lower extremity, he was sent for a doppler blood flow test, which was negative. He remained ambulatory with a cane as his assistive device, and walked with a slight limp. Thereafter, prior to his September 2017 surgery for left above knee amputation, the Veteran reported that his pain intensity was a dull aching pain in the left knee. At the February 2020 videoconference hearing, the Veteran asserted that his left knee had not really improved following his February 2014 surgery to be released from convalescence, and as such, he believed that his left knee should have been rated at 60 percent. He testified that after his left knee surgeries, his leg just kept getting worse and worse, and that even after his convalescence period ended on April 1, 2015, he remained in a wheelchair, with chronic pain and no range of motion, as he was unable to move his leg due to pain and swelling. He noted that his VA treating physician ultimately recommended amputation due to the deformation of his left knee and leg that began following his prior surgeries in 2013 and 2014 and progressed until the time it was amputated. The Veteran stated that he “absolutely” had chronic severe pain on motion and weakness in the left knee throughout the entire period of time, so much that he required the assistance of a wheelchair and a walker. The Veteran’s representative asserted that the Veteran was not provided with an examination of his left knee from prior to his 2013-14 surgeries and prior to the time of his amputation, and that as a result, it was not possible to know exactly what the condition of his knee was, and therefore, it is reasonable to say that there was probably a lot of chronic severe pain and weakness in the left knee. Significantly, however, the Board finds that the preponderance of the evidence of record, including as discussed above, does not document that the Veteran’s left knee disability resulted in ankylosis of the knee, limitation of extension to 45 degrees, impairment of the tibia and fibula, or chronic residuals consisting of severe painful motion or weakness in the affected extremity, in order to warrant an increased disability rating in excess of 40 percent from April 1, 2015 to September 13, 2017. While the Veteran’s lay statements as documented within VA treatment records and at the February 2020 Board hearing assert that he experienced chronic residuals consisting of severe painful motion or weakness in his left knee, the Board affords more probative value to the objective evidence of record. Similarly, to the extent that the Veteran’s representative asserted that the lack of a VA knee examination following the 2013-2014 surgeries until the time of amputation in September 2017 mandates that reasonable doubt be resolved in favor of the Veteran, the Board disagrees due to the probative value of the objective treatment records discussed herein. For example, when seen for the first time in October 2016, over two years after his February 2014 surgery, the Veteran did not report that he had been in a wheelchair due to debilitating pain or weakness. Rather, he noted increasing left knee pain and swelling for the past three weeks only, which he reported was similar to his past episodes of osteoarthritis. This weighs against his later statements and testimony that his condition had worsened to include severe painful motion or weakness. Moreover, the March 2017 follow-up visit documents that the Veteran retained range of motion in his left knee, noted as “19-56 degrees,” (which the Board reasonably interprets as extension to 19 degrees and flexion to 56 degrees) and it was further noted that there was no clear evidence that any infection had been present based upon a review of his medical records. Additionally, at the June 2017 follow-up visit, the photographs provided by the Veteran were noted to appear as if the skin of his knee was moist, but they did not show pus from infection. Although the Veteran requested a left leg amputation due to difficulty with pain, swelling, and activities of daily living, he nevertheless retained left knee range of motion, noted as “21-61” degrees (which the Board reasonably interprets as extension to 21 degrees and flexion to 61 degrees). Moreover, it was noted that the Veteran remained ambulatory with a cane and walked with a slight limp only. The Board finds that this objective evidence is highly probative evidence that contradicts the Veteran’s lay assertions of chronic residuals consisting of severe painful motion or severe weakness in his left knee. The Board has also considered whether the Veteran’s intermediate degrees of residual weakness, pain, or limitation of motion, warrant an increased disability rating under DCs 5256, 5261, or 5262 regarding ankylosis of the knee, limitation of motion of the leg, or impairment of the tibia and fibula, respectively. First, the Board notes that the documented range of motion findings in March 2017 and June 2017 show that the Veteran was not experiencing left knee ankylosis in order to warrant an increased disability rating under DC 5256. Similarly, such objective findings also do not warrant and an increased disability rating under DC 5261 based upon limitation of extension, as limitation to 45 degrees is required for an increased 50 percent disability rating under the relevant criteria. Finally, the Board notes that the maximum disability rating available under DC 5262 for impairment of the tibia and fibula is 40 percent; therefore, this diagnostic code cannot provide an increased disability rating in excess of 40 percent as claimed by the Veteran. In sum, the Board finds that the preponderance of the evidence of record weighs against the Veteran’s claim of entitlement to an increased disability rating in excess of 40 percent for left knee status post unicompartmental medial replacement from April 1, 2015 to September 13, 2017. As the preponderance of evidence is against the claim, there is no reasonable doubt to be resolved, and the claim must be denied. 2. Entitlement to a TDIU rating The Veteran also asserts that he is precluded from securing or following a substantially gainful occupation due to his service-connected disabilities, including his left knee disability and his other service-connected disabilities secondary to his left knee disability, including major depressive disorder. A TDIU rating may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under the schedular criteria. If there is only one such disability, it must be rated at 60 percent or more; if instead 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. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. The central inquiry in determining whether a veteran is entitled to a TDIU rating is whether service-connected disabilities alone are of sufficient severity to produce unemployability. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough; a high disability rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Additionally, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, it is a determination for the adjudicator. The Veteran is currently service-connected for left above knee amputation (rated as 100 percent disabling from December 10, 2013, as 40 percent disabling from April 1, 2015, and as 60 percent disabling from September 13, 2017), major depressive disorder (rated as 50 percent disabling from October 18, 2017, and as 70 percent disabling from June 11, 2019), left knee instability (rated as 10 percent disabling from October 29, 2010 to February 12, 2014), two left knee scars (rated as noncompensable and 10 percent disabling, respectively, each from June 22, 2017), and left leg chronic venous insufficiency (rated as noncompensable from February 21, 2013). Based upon the above, the Veteran’s combined disability rating during the relevant appeal period is 40 percent from April 1, 2015, 50 percent from June 22, 2017, 60 percent from September 13, 2017, 80 percent from October 18, 2017, and 90 percent from June 11, 2019. As such, the Veteran meets the schedular criteria for a TDIU rating from October 18, 2017, but no sooner, although the Board is mindful that the failure to meet the schedular percentage requirements prior to that date does not preclude the availability of a TDIU rating on an extraschedular basis. However, following a review of the evidence of record, and as discussed below, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to a TDIU rating for the entire period on appeal, as the probative evidence of record does not document that the Veteran’s service-connected disabilities have precluded him from securing or following a substantially gainful occupation during the appeal period. Within his initial November 2013 TDIU application, the Veteran stated that his left knee prevented him from securing or following any substantially gainful occupation. He noted that his disability affected full-time employment in April 2013, when he last worked and became too disabled to work. His employment history included work at Ocwen Loan Service as a litigation consultant for 40 hours per week from 2000-2013. He noted that he lost “months” of work time from illness and that his highest gross earnings per month was $7,500. He further reported an educational history including four years of high school with an additional two years of technical school and computer training from 1998-2000. Notably, however, the Veteran later submitted two additional formal TDIU applications, which contain additional, different, or even conflicting information. His second formal TDIU application, submitted years later in May 2019, asserts that he is prevented from working due to amputation of his left leg, “along with diabetes, [and] mental illness.” While the Veteran is service connected for his left leg and psychiatric disorder, the Board is mindful that the Veteran is not service connected for diabetes for any period on appeal; as such, this cannot be considered in the context of his TDIU claim. He further reported, consistent with his first TDIU application, that he became too disabled to work as of April 1, 2013, and added that the most money he made was in 2005, when he earned $80,000 as a litigation consultant. His reported employment history included only his work as a consultant for Ocwen Bank for 40 hours per week from 2001-2013. His report of six years of lost work time due to illness, with his highest gross earnings per month of $6,000, is noticeably inconsistent with his prior TDIU application. Additionally, he further reported that he had tried to obtain employment since he became too disabled to work, including at two employers in banking from 2014 to 2019. Shortly thereafter, in June 2019, the Veteran submitted a third formal TDIU application wherein he asserted that he was prevented from working due to amputation of his left leg (phantom pain, scar, and falling from prosthetic), diabetes, and a mental health issue. Again, the Board is mindful that the Veteran’s nonservice-connected diabetes cannot support his claim of entitlement to a TDIU. Curiously, the Veteran again stated that his disability affected full time-employment in April 1, 2013, but he now reported that he last worked full-time and became too disabled to work on September 23, 2016. He reported that the most money he earned in one year was $80,000 (in 2012 as opposed to 2005 as he previously reported) as a litigation consultant for Ocwen Bank, where he worked from October 2002 to April 2013. However, this time, he denied any lost time from illness and noted his highest gross earnings per month were $7,000, which is inconsistent with his previous two applications. He again noted that he left his last job due to disability but reported that he had since tried to obtain employment from several different employers, including in banking and insurance, which differs from his prior report in May 2019. Specifically, he reported trying to work at Bankers Life Insurance (in sales in March 2019), Wells Fargo (as an escrow manager in April 2019), and at All-State (insurance in May 2019). The Veteran’s reported educational history is consistent between his three TDIU applications, including four years of high school and vocational rehabilitation in 1998 at Lincoln Technical School. Additionally, his June 2019 application included his remarks that since he lost his leg, he had looked for work and had been through many interviews without any luck. He felt that it was because he is too old and disabled to obtain gainful employment, and stated that he is always in pain and taking insulin for diabetes, which scared him, along with his mental health issue. Turning to additional evidence of record, the Board notes that VA treatment records from October 2012, prior to his initial 2013 TDIU application, document that the Veteran was currently working at a bank in loan service, where he was a long-time employee; however, he reported increasing anxiety surrounding his position after many other employees had been fired recently. The Veteran did not report concerns with his position due to service-connected disability or disabilities at that time. The Board is mindful that the evidence of record documents clear occupational impairment from his primary left leg disability, now rated as left above the knee amputation. Upon VA knee examination in April 2013, the VA examiner found that the Veteran’s service-connected left knee resulted in functional impact upon his ability to work; however, he noted that the Veteran was a litigation consultant currently on medical leave for bereavement, rather than due to any service-connected disability. Moreover, while the Veteran reported that he was unable to sit still for more than 10 minutes or walk more than 30 feet due to leg pain and back pain, the Board is mindful that the Veteran is not service connected for a lumbar spine disability. Similarly, the Board has considered an April 2013 letter from the Veteran’s treating VA physician’s assistant, which the Veteran has relied heavily on, including within his February 2020 hearing testimony, to support his claim of entitlement to a TDIU rating. The PA-C noted that the Veteran had severe degenerative joint disease in the left knee and lumbar spine that made it impossible to sustain employment of any kind. He noted that the Veteran would be terminating his employment with Ocwen Loan Servicing effective May 1, 2013 and he was at maximum medical improvement, with very little chance to improve above his current baseline. Again, while the Board finds this is probative evidence, to the extent that the Veteran and his treating medical professional attribute at least some inability to work to a nonservice-connected lumbar spine or back disability, such evidence cannot support the Veteran’s claim of entitlement to a TDIU. A January 2014 letter from Ocwen Financial Corporation human resources notes that the Veteran was employed from January 2001 until May 1, 2013, when he had to leave his position due to a disability, which interfered with his ability to perform his daily job duties due to discomfort during the work day and frequent medical appointments. While the Board has properly considered this piece of evidence, it is significant that the letter does not identify the specific type or nature of the disability that required the Veteran to miss work or which interfered with his ability to perform his job duties, as such, its probative value is lowered in the context of his TDIU claim. VA treatment records from May 2013 document the Veteran’s report that he had retired from work with long-term disability by his employer and he noted that he planned to file for disability with the Social Security Administration (SSA). A subsequent June 2013 SSA Disability Determination and Transmittal documents that the Veteran was found by SSA to be disabled as of May 1, 2013 due to primary other unspecified arthropathy and secondary affective/mood disorder, which the Board notes are both service-connected disabilities. A concurrent Disability Determination Explanation documents the Veteran’s medically determinable impairments, including severe primary major joints dysfunction; non-severe secondary affective disorders; and non-severe other alcohol and substance addiction disorders. In August 2013, the Veteran stated to VA that he was unable to pursue work of any kind, and he noted that his award of SSA disability would begin in November 2013. SSA decisions are relevant, but not controlling for VA determinations. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Given the above, the Board has properly considered the SSA findings of occupational disability due to primary other unspecified arthropathy and secondary affective/mood disorder and afforded this finding due probative weight. However, for the reasons discussed herein, the Board finds that the SSA finding of disability does not mandate a finding that the Veteran is precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. The Board has already detailed some of the inconsistency regarding the information presented within the Veteran’s several TDIU applications. Similarly, VA treatment records document inconsistencies about the severity of the Veteran’s disabilities, as well as the Veteran’s reported occupational history, which lower the probative value of the Veteran’s statements in the context of his TDIU claim. For example, VA treatment records from September 2017 document that prior to his left leg amputation, the Veteran was independent in activities of daily living and self-care but required a cane for ambulation. This finding is inconsistent with the Veteran’s own statements, including at the February 2020 hearing, that he was basically confined to a wheelchair and unable to function following his 2013 and 2014 knee surgeries, both after his period of VA convalescence ended in April 2015 and up to the time of his September 2017 left leg amputation. Additionally, the fact that the Veteran remained largely independent, only requiring the use of a cane for ambulation, is inconsistent with his lay reports. In November 2017, the Veteran reported that he previously worked as a stone mason for 15 years until he could no longer handle the physical demands due to his left knee, after which he then worked as a litigation consultant for 13 years at a bank helping people avoid foreclosure. He reported that he last worked in 2012, and that he quit after his first wife died. Upon VA knee examination in February 2018, the Veteran reported that he last worked as a loan servicing officer three years prior and that he experienced knee pains that prohibited standing and sitting. This lay report by the Veteran would mean that he was working as a loan officer in approximately early 2015, which is further evidence that is inconsistent with the SSA finding and his other lay reports of occupational disability from April 2013. Upon VA amputations examination in June 2018, the Veteran reported constant severe pain in the amputation stump which was temporarily decreased upon changing position every 15-20 minutes from sitting to standing and vice versa. He also noted daily phantom pain and tenderness in the stump, and noted that he required the use of a cane to walk as he had fallen a few times since using a prosthesis. A subsequent July 2019 VA amputations examination documented functional impairment upon the Veteran’s ability to work in that his left above knee amputation could present functional impairments that would impact physical employment that required standing, lifting, carrying, and strenuous physical activities. The examiner commented that there was no objective evidence to support that sedentary employment would be impacted by the condition. Given the above evidence, the Board finds that the preponderance of evidence is against finding that the Veteran is precluded from securing or following a substantially gainful occupation from his service-connected left leg disability. While there is clearly functional impairment, as noted, the evidence shows that the Veteran has retained some functional ability, even following his left above the knee amputation. To the extent that the Veteran, his VA physician’s assistant, or the SSA disability finding support his claim, the Board finds that such reports are of limited probative value given their inconsistency with the additional evidence of record, as discussed in detail above. Aside from his primary left leg disability, the Veteran’s other service-connected disabilities, which the Board notes are all secondary to his left leg, include major depressive disorder, left knee instability, left knee scars, and left leg chronic venous insufficiency. As discussed herein, the Board finds that the probative evidence of record does not document that these disabilities, when viewed alone or in combination with each other and the Veteran’s left leg disability, do not warrant a grant of the Veteran’s TDIU claim. Regarding his left leg venous insufficiency and left leg scars, the Board notes that a November 2013 VA Artery and Vein conditions examination noted that the Veteran’s service-connected varicose veins of the left leg did not result in any functional impact on his ability to work. Similarly, a July 2019 VA scars examination noted that there was no functional impact upon the Veteran’s ability to work due to his service-connected surgical scars, which the VA examiner stated there was no objective evidence to support that his surgical residual scars would present functional impairments that would impact employment. Regarding the Veteran’s service-connected major depressive disorder, upon VA mental disorders examination in June 2018, the VA examiner found that the Veteran’s major depressive disorder resulted in occupational and social impairment with reduced reliability and productivity. The Veteran was noted to have previously completed vocational training for information technology and telecommunications. His occupational history included premilitary work with fiberglass insulation for one year and postmilitary experienced as a stone mason for 15 years and a loan consultant for a bank for 13 years, with retirement in 2013. The examiner noted that the Veteran’s mental symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was also noted to be capable of managing his financial affairs. More recently, a July 2019 VA mental disorders examination documents that the Veteran’s major depressive disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner noted that the Veteran was currently busy supervising home renovations, and that he last worked in 2013 in loan servicing as a litigation consultant for 13 years and before that he worked in construction for 16 years until he could not do it anymore. He reported that he did well financially and “was making a lot of money when this happened [leg amputation in September 2017] and it changed everything.” He stated that he was not currently employed because every time he would go for an interview, they would see him as disabled. The VA examiner noted that the Veteran’s psychiatric symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including work or a worklike setting). The Veteran was noted to be capable of managing his financial affairs. The examiner remarked further that the assessment of occupational impairment related solely to the Veteran’s identified mental health disorder, and did not consider any other impairments, or age, situational, or socioeconomic factors that may also impact employability. Additionally, the examiner noted that the Veteran’s ability to understand and follow instructions was not impaired, while the Veteran’s abilities to retain instructions, to sustain concentration to perform simple tasks, and to sustain concentration to task persistence and pace were mildly impaired, and the Veteran’s abilities to respond appropriately to changes in the work setting and to respond appropriately to coworkers, supervisors, or the general public were moderately impaired. Finally, the VA examiner included the utilized scale of impairment, which ranged from none (absent or minimal limitations), mild (slight limitation, but veteran can generally function well), moderate (functioning may be effortful or at the expense of functioning in other areas), marked, (serious limitation, substantial loss of ability to effectively function), and profound (major limitation, no useful ability to function in this area). While the above evidence documents clear occupational impairment resulting from the Veteran’s major depressive disorder, the Board finds that it does not warrant a grant of TDIU. The Veteran’s already high psychiatric disability rating contemplates a high level of both social and occupational impairment. Additionally, while the Board retains the function as adjudicator to determine what level of functional or occupational impairment to assign based upon a given disability, the Board finds it probative that the June 2018 VA examiner found that the Veteran’s major depressive disorder resulted in no more than occupational and social impairment with reduced reliability and productivity, which does not equate with a finding of total occupational impairment. Similarly, while the July 2019 VA examiner found that the Veteran’s major depressive disorder resulted in the more severe finding of occupational and social impairment with deficiencies in most areas, the Board finds it highly probative that the examiner later identified that the Veteran’s occupational abilities, including the ability to understand and follow instructions, to retain instructions, to sustain concentration to perform simple tasks, to sustain concentration to task persistence and pace, to respond appropriately to changes in the work setting, and to respond appropriately to coworkers, supervisors, or the general public were no worse than moderately impaired, which signifies functioning that may be effortful or at the expense of functioning in other areas, but does not equate with a finding of complete occupational preclusion, especially in light of the examiner’s failure to identify any occupational abilities that were markedly or profoundly impaired. Additionally, the Board notes that the Veteran even reported to the July 2019 VA examiner that he “was making a lot of money” at the time of his leg amputation in September 2017, which is at least some indication that he may have been working at that time in order to earn an income. Also of record are VA Vocational Rehabilitation and Employment (VR&E) program records that document the Veteran’s prior work history, including as a stone mason for 15 years, a consumer affairs analyst with Kia Motors in 1999, and thirteen years as an escrow analyst for Ocwen Federal Bank. The Veteran had also completed vocational training for information technology and telecommunications. The fact that the Veteran continued to pursue VR&E services after his September 2017 left leg amputation shows that he continued to pursue an interest in obtaining employment and that he did not believe he was precluded form substantially gainful employment. A May 2019 VA medical record shows that the examiner wrote, “Veteran is interested in full[-]time or part-time employment” and that he was interested in the Compensated Work Therapy Program. This is consistent with what the Veteran documented in the May 2019 and June 2019 formal TDIU applications wherein he wrote he had continued to try to obtain employment from 2014 to 2019, which would show that the Veteran did not believe he was precluded from substantially gainful employment. A January 2020 notice letter from VA informed the Veteran that VA would discontinue further action on his VR&E application due to a lack of cooperation or failure to participate, as the Veteran did not report for his initial appointment and did not provide enough information to make an entitlement determination. Finally, at the February 2020 videoconference hearing, the Veteran testified that his VA provider (the same physician’s assistant who provided the April 2013 letter discussed above) had told him long ago that he would have to go out on disability, and that if he did not, the leg would continue to get worse. The Veteran stated that he could not go on disability prior to 2013 because he was caring for his first wife of 31 years who had cancer, and so he had to keep working despite his leg pain. He noted that the last time he was able to sustain gainful employment was in 2013, after his first wife died and he went on disability after working as a litigation consultant for Ocwen Federal Bank. He reported that the job had required him to sit for long periods of time, which he could not do any longer as he had to walk around every five minutes. He noted that many times he felt that he was going to be let go because of leaving his job for medical appointments, but that he worked as long as he could to maintain health insurance. The Veteran further stated that he could not work currently because he could not lift anything due to losing his balance, could not stand for long periods of time, and could not walk, so therefore, he could not see himself performing any kind of work function in society. The Veteran’s representative asserted that VA had previously denied the Veteran’s TDIU claim because he had not met the schedular criteria prior to his left leg amputation, but that if his leg would have been properly been rated following his convalescence after surgery, the Veteran would have met the schedular criteria for TDIU and that his claim likely would have been granted by VA. As discussed above, the Board is mindful of the Veteran’s varying reports within the record about his employment history. Notably, when questioned by the undersigned about the conflicting information regarding his work history within his three formal TDIU applications, the Veteran specifically testified that he had not worked at all after he left the bank in April 2013 because he had been on SSA disability since that time and did not want to “break the rules and go work.” The Board finds that this testimony by the Veteran lacks credibility value given the evidence previously discussed, which tends to support a finding that he continued to work for at least some period of time after his reported disability retirement in April 2013. The following month, in February 2020, the Veteran submitted a written statement that reported that his prosthetic leg kept giving out and that he would fall many times per week and was unable to carry anything because he would lose his balance and fall. He also stated that the pain was such a burden that he was unable to walk any longer. He asserted that he could not work because he had to get up from sitting every five minutes and that he could not walk more than 50 feet without sitting down. He reported that he was told to go on disability by his treating physician prior to 2013, but that he had to keep working at that time to maintain health insurance benefits for his wife, who was dying from cancer. After his wife died, he retired and obtained SSA disability benefits, but he stated that his left knee amputation had ruined his life, as he was unable to work, run, and function in society. While this statement has been considered, for all the reasons discussed above, the Board affords more probative weight to the objective evidence of record when compared to the Veteran’s varied and inconsistent lay reports of record. Indeed, given the above, the Board finds that the Veteran’s inconsistent reports have damaged his overall credibility in the context of his claim of entitlement to a TDIU rating. Facts reported by the Veteran show that in February 2016, the Veteran reported his father had had a stroke eight months ago (approximately June 2015), his mother was legally blind, and that he was taking care of his elderly parents. In May 2018, the Veteran reported he was supervising the renovations on his house after his house had sustained damage from a hurricane. He also reported he was taking care of his parents during the week and would take them to their many doctors’s appointments. This tends to show that the Veteran was not working at these times because of personal reasons versus being precluded from substantially gainful employment. Additionally, his actions of taking care of his parents throughout the week, driving them to doctors’s appointments, and supervising renovations of his home tend to show that he would not be precluded from substantially gainful employment. During actions such as these, he is walking, driving, sitting, and moving around. In conclusion, the Board finds that the preponderance of the evidence is against a finding that the Veteran was precluded from securing or following a substantially gainful occupation due to his service-connected disabilities for any period on appeal. Moreover, the record documents the Veteran’s educational history, including four years of high school and two years of vocational and technical training in information technology, as well as his employment history in both construction and banking/insurance. Given his education and employment history, the Board finds that he is capable of substantially gainful employment, subject to limitations that are not outside the bounds of those adequately contemplated by his combined disability rating based upon all of his service-connected disabilities. Although functional impairment has been identified due primarily to the Veteran’s service-connected left leg disability and major depressive disorder, the Board finds that such impairment does not preclude substantially gainful employment where he could perform duties similar to his past work experience or utilizing skills gained throughout his education and occupational history. Indeed, the probative evidence of record supports that the Veteran would be able to engage in jobs that involve the use of information technology and computers, including data entry, telemarketing, or even financial or insurance service, which are jobs that could largely be conducted remotely from a home office environment. As such, while the Board has carefully reviewed the evidence of record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has been precluded from securing or following a substantially gainful occupation consistent with his educational and vocational history due to his service-connected disabilities for any period on appeal. As the probative evidence of record weighs against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim of entitlement to a TDIU rating is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.