Citation Nr: 21001706 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 08-37 162 DATE: January 11, 2021 ORDER A rating in excess of 20 percent prior to December 11, 2007, for residuals of a medial meniscectomy of the left knee and in excess of 30 percent after February 1, 2009, for status post arthroplasty of the left knee is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 1, 2017, is denied. FINDINGS OF FACT 1. Prior to December 11, 2007, the Veteran’s residuals of a medial meniscectomy of the left knee was manifested by no more than moderate lateral instability. 2. As of February 1, 2009, the Veteran’s status post arthroplasty of the left knee results in, at most, intermediate degrees of residual weakness, pain, or limitation of motion, without chronic residuals consisting of severe painful motion or weakness in the affected extremity, ankylosis, limitation of extension to 30 degrees or more, or nonunion of the tibia and fibula with loose motion requiring a brace. 3. Prior to July 1, 2017, the Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to December 11, 2007, for residuals of a medial meniscectomy of the left knee and in excess of 30 percent after February 1, 2009, for status post arthroplasty of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5257, 5055. 2. Prior to July 1, 2017, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1965 to October 1968, and January 1969 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2007 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In December 2010, November 2014, and February 2018, the Board remanded the case for additional development. While on remand, a September 2020 rating decision granted a TDIU, effective July 1, 2017. However, as the Veteran has contended that his left knee disability, in part, rendered him unemployable and the instant increased rating claim stems from a May 31, 2007, claim, the issue of entitlement to a TDIU prior to July 1, 2017, remains on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). The case now returns for further appellate review. 1. Entitlement to a rating in excess of 20 percent prior to December 11, 2007, for residuals of a medial meniscectomy of the left knee and in excess of 30 percent after February 1, 2009, for status post arthroplasty of the left knee. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). As noted in the Introduction, the appeal period before the Board begins on May 31, 2007, the date VA received the Veteran’s claim for an increased rating for his residuals of a medial meniscectomy of the left knee, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the appeal period prior to December 11, 2007, such disability is evaluated as 20 percent rating disabling under DC 5257. As of February 1, 2009, the AOJ recharacterized the Veteran’s such disability as status post arthroplasty of the left knee and assigned a 30 percent rating pursuant to DC 5055. As an initial matter, the Board notes that, prior to December 11, 2007, the Veteran was also in receipt of a 20 percent rating for arthritis of the left knee pursuant to DC 5010-5260, which compensates him for arthritis with painful, limitation of motion of the left knee. As the issue of the propriety of such rating is not before the Board, it will not be addressed herein. DC 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Descriptive words “slight,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Additionally, DC 5055 provides for a 100 percent rating for one year following the implantation of prosthesis (i.e., knee replacement surgery). After that period, a 60 percent rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity is warranted. A minimum rating of 30 percent is provided post knee replacement. Finally, for intermediate degrees of residual weakness, pain, or limitation of motion, warranting a rating greater than 30 percent, but less than 60 percent, the disability should be rated by analogy to DCs 5256, 5261, 5262. 38 C.F.R. § 4.71a. Under 5256, ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent rating. Under DC 5261, a 40 percent rating is assigned where extension is limited to 30 degrees and a 50 percent rating is assigned where such is limited to 45 degrees. Under DC 5262, nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating. Turning to the evidence of record, the Veteran was afforded a VA examination in June 2007. At such time, he reported constant knee pain, weakness, stiffness, swelling, instability, and giving way, but denied heat, redness, and flare-ups. He further reported using a brace, cane, or crutch, and indicated that he had difficulty walking, lifting, and climbing stairs and had fallen 4-6 times in the previous year secondary to his knees giving way. Upon examination, the Veteran’s left knee was tender to palpation and he had crepitus, but no joint effusion was noted. He had flexion to 90 degrees and normal extension with pain. Upon repetitive range of motion testing, the Veteran maintained the same range of motion without any additional limitations. No instability was observed on examination, and the Veteran had normal anterior and posterior drawer sign, McMurray test, and Lachman’s test. There was no laxity on varus or valgus strain. Pursuant to a December 2010 Board remand, the Veteran was afforded another VA examination in June 2011. At such time, he reported pain and problems with mobility. It was noted that he underwent a left medial meniscus repair in 1969 and a left total knee replacement in 2007. He further reported deformity, weakness, incoordination, decreased speed of joint motion, tenderness, and moderate weekly flare-ups that lasted for hours. The Veteran stated that such were precipitated by weather changes, and prolonged walking or standing; and alleviated by medication. He also stated that he could stand for 15-30 minutes and walk 100 yards, and he used a cane. Upon examination, he had a normal gait, but with weakness and enlargement. Left knee flexion was limited to 100 degrees due to pain with normal extension. There was evidence of pain following repetitive motion, but no additional limitations. The Veteran did not have ankylosis. On VA examination in January 2014, the Veteran reported flare-ups, to include increased pain with stairs, walking on uneven surfaces, and prolonged sitting or standing. Physical examination showed left knee flexion to 120 degrees and normal extension without pain. There was no evidence of additional limitation in range of motion on repetitive-use testing. Functional loss/impairment included less movement than normal. The Veteran did not have tenderness or pain to palpation for joint line or soft tissues of the left knee; and muscle strength and instability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation, or tibial and/or fibular impairments. The examiner noted that the Veteran had a meniscectomy in approximately 1970. Here, the examiner indicated that he did not have any residual signs and/or symptoms due to his meniscectomy. The examiner further noted that the Veteran underwent a left total knee joint replacement in 2007 with intermediate degrees of residual weakness, pain, or limitation or motion. The Veteran noted that he regularly used a brace and occasionally used a cane for increased support and stability. On VA examination in July 2015, the Veteran reported flare-ups, to include increased pain with stairs, walking on uneven surfaces, and prolonged sitting or standing. Physical examination showed left knee flexion to 120 degree and normal extension without pain. There was no evidence of additional functional loss or range of motion on repetitive-use testing. Additional contributing factors of disability included disturbance of locomotion and antalgic gait. The examiner indicated that it was at least as likely as noted that pain, weakness, fatigability, or incoordination could significantly limit the Veteran’s functional ability during flare-ups or when the joint was used repeatedly over a period of time. Here, the examiner noted that the extent to which such additional conditions would limit functional ability or if they at all pertained would be dependent on the amount of repetitive use, the forcefulness of the movements, the period of time over which movements occurred, or the severity of exacerbation of the condition. The examiner further noted that additional limitations and the reduction of range of motion would be dependent on the conditions impacting repetitive use or the severity of exacerbations. The Veteran did not have tenderness or pain to palpation for joint line or soft tissues of the left knee; there was no evidence of crepitus; no ankylosis; and muscle strength and instability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation, or tibial and/or fibular impairments. The examiner noted that the Veteran had a meniscectomy in approximately 1970, and underwent a left total knee joint replacement in 2007 with intermediate degrees of residual weakness, pain, or limitation or motion. The Veteran reported that he regularly used a brace for ambulation. On VA examination in June 2016, the Veteran endorsed flare-ups and reported that he was unable to climb stairs due to weakness and pain, walked only short distances due to pain, and could only walk on even surfaces. Physical examination showed left knee flexion to 110 degrees and normal extension without pain. Such range of motion contributed to functional loss in that the Veteran had a difficult time with stairs and uneven ground. There was no evidence of additional limitation in range of motion on repetitive-use testing. The examiner indicated that she was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limits the Veteran’s functional ability with flare-ups. The Veteran had crepitus, but did not have tenderness or pain to palpation for joint line or soft tissues of the left knee, and muscle strength and instability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation, or tibial and/or fibular impairments. The examiner noted that the Veteran had a meniscectomy in approximately 1970 with residuals of decreased range of motion, and underwent a left total knee joint replacement in 2007 with a decrease in range of motion. The Veteran noted that he regularly used a cane and occasionally used a walker for ambulation. On VA examination in August 2017, the Veteran reported pain and decreased range of motion with aggravating factors including physical activity, weather, and prolonged walking and standing. He noted that he used an electric cart to shop, and used medication daily. The Veteran endorsed flare-ups that were dull to achy. He reported that functional loss/impairment included that many times he had to stop and sit down. Physical examination showed left knee flexion to 95 degrees with pain, and normal extension. Such range of motion contributed to functional loss in that the Veteran had decreased ability to kneel and squat. There was no evidence of additional limitation in range of motion on repetitive-use testing. The examiner indicated that she was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limits the Veteran’s functional ability with flare-ups as there was no objective evidence to review and not enough information provided. The Veteran did not have tenderness or pain to palpation for joint line or soft tissues of the left knee; and there was evidence of crepitus and pain on weightbearing. Muscle strength testing was normal for left knee flexion, but a reduction in muscle strength for left knee extension (4/5). The Veteran did not have muscle atrophy or ankylosis. Instability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation, or tibial and/or fibular impairments. The examiner noted that the Veteran had a meniscectomy in approximately 1970, and underwent a left total knee joint replacement with intermediate degrees of residual weakness, pain, or limitation of motion. The Veteran noted that he regularly used a cane and occasionally used a walker for increased stability. The examiner noted that the Veteran was questioned regarding pain on both passive and active motion, and weightbearing and non-weightbearing. During his November 2017 Board hearing, the Veteran testified that he was unable to kneel, walk on uneven ground, thin certain sections of his 150-acre farm, or mow the lawn; he had no strength in his legs; he had difficulties with prolonged standing and walking; and he experienced an aching pain at night. He also testified that he experienced weakness in his knees, which required him to use both of his arms when getting out of a chair, and had very limited physical activity as he no longer was able to hunt, fish, garden, work on his farm, or go shopping. Pursuant to a February 2018 Board remand, the Veteran was afforded another VA examination in September 2020. At such time, the Veteran reported a continuous ache and a lack of strength to stand from sitting. Here, the examiner noted that the Veteran was morbidly obese, and the strength of his legs could not support him well. The Veteran further reported that he did not walk much at all, had more pain with carrying weight, used a lift chair to stand, and wore shoes that did not need to be tied. He denied flare-ups. He stated that functional loss/impairment included weakness/pain that limited walking and standing from a sitting position. Physical examination showed left knee flexion to 85 degrees with pain, and normal extension. There was no evidence of additional limitation in range of motion on repetitive-use testing. The Veteran did not have tenderness or pain to palpation for joint line or soft tissues of the left knee; and there was no evidence of crepitus, but evidence of pain on weightbearing. There was a reduction in muscle strength for left knee flexion and extension (4/5). The Veteran did not have muscle atrophy or ankylosis. Instability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation, or tibial and/or fibular impairments. The examiner noted that the Veteran had a meniscectomy in 1970, and underwent a left total knee joint replacement in December 2007 with intermediate degrees of residual weakness, pain, or limitation of motion. The Veteran indicated that he did not use assistive devices. The examiner noted that there was objective evidence of pain on passive range of motion and non-weightbearing testing. Furthermore, the September 2020 VA examiner rendered a retrospective opinion pursuant to the February 2018 Board remand. In this regard, the examiner reported that the Veteran’s right knee was affected; therefore, there was no opposite undamaged joint. The examiner further reported that there was pain on motion on the Veteran’s left knee before his total knee replacement, mild pain in June 2011, and no pain by 2014; therefore, it was reasonable that the range of motion recorded was accurate and did not change with weightbearing. Additionally, the examiner indicated that it would be pure speculation to estimate any range of motion limitations caused by flare-ups and repetitive use as there was very little specific information on the Veteran’s left knee in regards to limitations caused by flares and repetitive use as his right knee was the focus of the examinations. Here, the examiner noted that the most objective evaluation of limitations of the left knee was from Dr. Coughlin who examined both knees prior to the Veteran’s right knee total replacement, who indicated “the patient has had his left knee replaced with a good outcome” and “left knee exam is consistent with successful primary TKA surgery.” Such doctor did not provide a range of motion. A review of the treatment records dated throughout the appeal period do not reflect any additional findings pertinent to the rating criteria that were not documented at the aforementioned VA examinations. Prior to December 11, 2007 — DC 5257 For the period prior to December 11, 2007, the Board finds that the Veteran’s residuals of a medial meniscectomy of the left knee does not warrant a rating in excess of 20 percent under DC 5257. In this regard, the Board finds that such current rating fully contemplates the Veteran’s subjective complaints of instability and giving way; however, an increased rating of 30 percent for severe lateral instability is not warranted as objective examination in June 2007 revealed no instability and all relevant testing was negative. Therefore, a higher rating of 30 percent for severe recurrent subluxation or lateral instability is not warranted prior to December 11, 2007. The Board notes that, prior to the appeal period, the Veteran underwent a left knee meniscectomy in 1970. Therefore, the Board has considered the applicability of DC 5259, which provides a single 10 percent rating for symptomatic removal of semilunar cartilage. However, the Board finds that assigning a separate rating under DC 5259 would be tantamount to pyramiding as the Veteran would be compensated twice of the same symptomatology. See 38 C.F.R. § 4.14; Esteban, supra. Specifically, under DC 5259, the criteria is based on symptomatic residuals, which, in plain language, means the Veteran reports residuals. There is no objective finding required other than the removal of the cartilage. In the instant case, every VA examination found no residuals of the Veteran’s meniscectomy with the exception of the June 2016 VA examination, which noted that such only included decreased range of motion. However, as he is currently in receipt of a 20 percent rating under DC 5010-5260, which fully contemplates arthritis with painful, limited motion, it would be pyramiding to assign a separate rating under DC 5259. Furthermore, as the evidence does not show ankylosis, dislocation of semilunar cartilage, extension to a compensable degree, impairment of the tibia or fibula, or genu recurvatum, higher or separate ratings under DCs 5256, 5258, 5261, 5262, and 5263, respectively, are not warranted. As of February 1, 2009 – DC 5055 As of February 1, 2009, the Veteran’s left knee disability has been evaluated as 30 percent disabling under DC 5055. Here, the Board finds that he has not reported any additional or more severe symptoms that would warrant a rating in excess of 30 percent. In this regard, the record reflects that the Veteran’s left knee replacement has not resulted in chronic residuals consisting of severe painful motion or weakness in the affected extremity. Significantly, the January 2014, July 2015, August 2017, and September 2020 VA examiners found that his left knee replacement resulted in intermediate degrees of residual weakness, pain, or limitation or motion, which is consistent with the currently assigned 30 percent rating. Muscle strength testing was normal on VA examinations in January 2014, July 2015, and June 2016. Additionally, as of February 1, 2009, there was no objective evidence of muscle atrophy or instability. Moreover, while the Veteran reported pain; increased pain with stairs, walking on uneven surfaces, and prolonged sitting, walking, or standing; weakness; an inability to kneel; limited physical activity; and a lack of strength in his leg, such symptomatology is contemplated by his currently assigned 30 percent rating. As such, the Board finds that a rating in excess of 30 percent is not warranted under DC 5055. Furthermore, the record reflects that the Veteran’s left knee replacement has not resulted in ankylosis, limitation of extension to 30 degrees or more, or nonunion of the tibia and fibula with loose motion requiring a brace since February 1, 2009, in order to warrant a rating in excess of 30 percent under DCs 5256, 5261, or 5262. Finally, the Board notes that the Veteran has been awarded a separate noncompensable rating for the scars associated with his left knee disability for the entire appeal period (see September 2020 rating decision), and the evidence does not show, nor has he alleged, that such scars are symptomatic or of a size so as to warrant a compensable rating. Other Considerations In reaching its conclusions, the Board acknowledges the Veteran’s belief that his left knee disability is more severe than as reflected by the currently assigned ratings. While the Board recognizes that the Veteran is competent to describe his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his left knee disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disability. The Board has considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected left knee disability; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Thus, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the Board finds that a rating in excess of 20 percent prior to December 11, 2007, for residuals of a medial meniscectomy of the left knee and in excess of 30 percent after February 1, 2009, for status post arthroplasty of the left knee is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable and, such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU prior to July 1, 2017. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay and profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility that when the same claimant worked before.” In other words, “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration Regulations). Marginal employment generally shall be deemed to exist when a veteran’s earned annual 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. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In regard to determining whether a protected work environment exists, the United States Court of Appeals for Veterans Claims (Court) has indicated that factors to consider may include the “magnitude of the veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work.” Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). Additionally, in Judge Lance’s concurring opinion, it was noted that where a veteran’s disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Id. at 396. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant 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. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities”. Moreover, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As noted previously, the instant claim stems from May 31, 2007, the date VA received the Veteran’s claim for an increased rating for his left knee disability. Prior to July 1, 2017, the Veteran was service-connected for residuals of medial meniscectomy of the left knee, evaluated as 20 percent disabling until December 11, 2007; arthritis of the left knee, evaluated as 20 percent disabling until February 1, 2010; chondromalacia of the right patella with degenerative joint disease, evaluated as 20 percent disabling prior to May 24, 2016; stats post arthroplasty of the left knee, evaluated as 100 percent disabling as of December 11, 2007, and 30 percent disabling as of February 1, 2009; total knee replacement of the right knee, evaluated as 100 percent disabling as of May 24, 2016, to July 1, 2017; and small sliding hiatus hernia and residuals scars of the left and right knees, all evaluated as noncompensably disabling. Based on the foregoing, the Veteran’s combined disability rating was 50 percent as of April 11, 2007; 100 percent as of December 11, 2007; 60 percent as of February 1, 2009; 50 percent as of February 1, 2010; and 100 percent as of May 24, 2016. However, as his service-connected bilateral knee disabilities are orthopedic in nature, they may be considered as one disability for the purposes of reaching the schedular threshold for a TDIU. As such, independent of the time periods where a temporary total rating has been assigned, he met the schedular threshold for a TDIU from February 1, 2009, to February 1, 2010. Given the 100 percent ratings assigned from December 11, 2007, to February 1, 2009, and as of May 24, 2016, the only periods for which referral for extra-schedular consideration of his TDIU claim could be made are prior to December 11, 2007, and from February 1, 2010, to May 24, 2016. See Green v. West, 11 Vet. App. 472 (1998); Vettese v. Brown, 7 Vet. Pp. 31 (1994); Holland v. Brown, 6 Vet. App. 443 (1994). Moreover, the evidence does not show, and the Veteran does not contend, that there is any basis on which to base an award of a TDIU predicated on a single service-connected disability; rather, he asserts entitlement to a TDIU based on the combined effects of his service-connected disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008). Based on the evidence of record, to include such summarized above and addressed further below, the Board finds that Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history prior to July 1, 2017. In this regard, in his July 2018 Application for Increased Compensation Based on Unemployability, the Veteran reported that he completed one year of college and last worked full-time in August 2007 as a mail handler for United States Postal Service (USPS). In May 2011, USPS confirmed that the Veteran last worked in August 2007 as a Group Leader Mail Handler, and retired on disability. The Veteran further reported that he worked as a van driver from April 2013 to October 2013 for Empire DM where he earned $6,800. However, in an August 2018 Request for Employment Information in Connection with Claim for Disability Benefits, the Veteran’s former employer, Empire DM, reported that he was employed from March 2015 to November 2015 as a driver prior to resigning, and made $ 11,387, which is below the poverty threshold for one person in 2015. Thus, as his work for Empire DM lasted, at most, only a few months at a time and never resulted in income over the poverty threshold, the Board finds that such is marginal in nature. Consequently, for TDIU purposes, the Veteran has not maintained substantially gainful employment since August 2007. In regard to his entire work history, his VA vocational rehabilitation file includes his resume, which indicates that, outside of his military service, he previously worked as a mechanic, cab driver, motor equipment operator and truck driver, tractor trailer driver, and mail handler for USPS. He further indicated that his volunteer experience included serving on the Board of Directors, and as a Day Training Officer, Master Mechanic, and Lieutenant and Fire Truck Operator for a Volunteer Fire Department, and as a volunteer van driver for VA. The Veteran also indicated, at such time, he had recovered from his total left knee replacement such that he can cope with everyday employment and be useful in the work field In his TDIU application, the Veteran indicated that his bilateral knee disabilities prevented him from securing or following any substantially gainful occupation. In this regard, he stated that his knees made it impossible for him to find work that was within the limits set by the VA and, while he underwent total knee replacements in 2007 and 2016, his knees became worse between his operations as the wait caused a decline in his physical abilities and life in general. Specifically, he indicated that he was unable to complete simple tasks such as walking 50 feet without stopping or getting up out of chair without using his arms; he could not get up after falling without help; and was unable to shop at a store without the aid of a motorized cart. Initially, the Board notes that the Veteran has only contended that his bilateral knee disabilities affect his employment. He does not allege, and the evidence does not show that his other service-connected disabilities, to include his hernia and residuals scars, affect his ability to secure or follow a substantially gainful occupation. Social Security Administration (SSA) records reflect that the Veteran became disabled as of August 15, 2007, based on a primary disability of osteoarthrosis and allied disorders, and a secondary disability of obesity. See October 2007 SSA Disability Determination and Transmittal. While the SSA decision is probative evidence in regard to his TDIU claim, it is not dispositive or binding on VA since the agencies have different disability determination requirements. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Further, an additional October 2007 SSA record (Physical Residual Functional Capacity Assessment) similarly reflects the Veteran’s primary diagnosis of bilateral knee osteoarthritis, and secondary diagnosis of obesity and cardiomyopathy. Thus, the Veteran was determined to be disabled due to a combination of disorders, which included nonservice-connected disorders in addition to his service-connected bilateral knee disabilities. Additionally, while the Veteran has not been engaged in substantial gainful employment since August 2007, the functional effects from his service-connected bilateral knee disabilities did not preclude him from engaging in gainful employment prior to July 1, 2017. In this regard, the evidence of record indicates that the Veteran retained the mental and physical capability to perform occupational duties other than those involving physical activities. Specifically, at his June 2007 VA examination, the Veteran reported that he worked for USPS, but his bilateral knee disability affected his occupation by making him unable to do his job due to difficulty walking, lifting, climbing stairs, and squatting. An August 2007 VA treatment record reveals that the Veteran’s primary physician submitted paperwork in support of his FMLA request to his current employer (USPS). Here, the VA physician indicated that the Veteran was unable to lift, walk, stand, stoop, repeatedly bend, climb, pull, and push. Significantly, the physician noted that the Veteran was able to perform work while “seated only.” In an additional August 2007 VA treatment record, the VA physician reported that the Veteran was to be limited to light duty work until otherwise notified post-surgery. Thus, the physician found that the Veteran’s bilateral knee disabilities still allowed him to complete “light work.” Further, an August 2007 letter from the Veteran’s employer, USPS, reflects that his request for a temporary light duty position was not approved as there were no positions available to accommodate him. To this extent, a November 2007 VA treatment record indicates that the Veteran was deemed fully disabled due to the severity of his degenerative arthritis as his USPS mail handler specific employment required an employee to be fully able to stand and walk all day. During his June 2011 VA examination, the Veteran reported that his usual occupation was truck driver, but he was currently retired due to a physical problem. He also indicated that he received medical disability benefits in August 2007 due to his bilateral knee disability. The examiner indicated the following impact on the Veteran’s occupational activities: decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, and decreased strength. A July 2011 assessment from VA vocational rehabilitation services reflects that the Veteran had a serious employment handicap due to his service-connected disabilities, but it was reasonably feasible that he could overcome it. His vocational impairments included squatting, kneeling, long standing or walking, stairs, and running. It was also found that the Veteran lacked transferable skills, education, and work experience that would qualify him for suitable employment that would be compatible with his disabling limitations and consistent with his interests, aptitudes, and abilities in light of the fact that the local/regional labor market did not offer reasonable opportunities for suitable employment for someone with the Veteran’s transferable vocational skills and present disability restrictions. In this regard, the Board finds it probative that the physical limitations associated with the Veteran’s bilateral knee disabilities would not prohibit performing work while seated, to include driving a vehicle. Further, while the counselor found that the Veteran lacked transferable skills, education, and work experience that would qualify him for suitable employment, such determination was based, in part, on consideration of the local/regional labor market, which is not a factor for consideration in a TDIU claim. Similarly, the January 2014 VA examination report reflects that the examiner determined that the Veteran’s bilateral knee disability impacted his ability to work in a physical capacity as the Veteran indicated that using stairs, kneeling, squatting, and prolonged sitting and standing caused increased pain/stiffness. Additionally, at a March 2014 vocational rehabilitation assessment, the Veteran reported that he was open to different types of employment and just had to stay off of his knees. He also indicated that he worked at Walmart for six weeks, but had to resign as his knees could not take it. Additionally, he indicated that he preferred to work, but needed a job in which he was not stressing his knees. The July 2015 VA examination report reflects that the examiner determined that the Veteran’s bilateral knee disability impacted his ability to work as the Veteran indicated that using stairs, kneeling, squatting, weather changes, and prolonged sitting and standing caused increased pain/stiffness. However, at the June 2016 VA examination, it was determined that, while he was unable to bend, knee, or walk on uneven ground, he was able to ambulate on even ground about ½ block at a time and carry light objects, and was able to perform sedentary tasks such as at a desk. Based on the foregoing, the Board finds that, while the July 2015 VA examiner found that the Veteran had difficulty with prolonged sitting, the remainder of the evidence of record reflects limitations only in regard to performing physical activities. Moreover, the July 2015 VA examiner did not find that the Veteran was unable to sit and there is no indication that he could not do so with an occasional break, which is inherent in all occupations. Additionally, despite the symptoms and limitations associated with his bilateral knee disabilities, the Veteran himself has indicated a desire and ability to work so long as he stayed off his knees. Further, while he could not longer perform his job as a Group Leader Mail Handler at the USPS due to his bilateral knee disabilities, he has other experience, to include as a truck and van driver, which he continued on a full-time and volunteer basis at various points during the appeal period, thereby demonstrating his ability to perform such occupational activity. Consequently, the Board finds that, prior to July 1, 2017, the Veteran retained the physical and mental abilities to perform the occupational tasks necessary to secure or follow a substantially gainful occupation consistent with his education and work history. Moreover, the evidence shows that the Veteran was rendered unemployable due to his bilateral knee disabilities based on a February 2020 TDIU Vocational Assessment Report. Specifically, F.F. found that the Veteran’s bilateral knee disabilities had precluded his ability to secure and follow gainful employment only since May 2016, the date he underwent his total right knee replacement surgery, for which he was awarded a 100 percent rating. Therefore, the Board finds that, prior to July 1, 2017, the Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and a TDIU on a schedular basis must be denied, and referral for consideration of a TDIU on an extra-schedular basis is not warranted. Thus, the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, Associate 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.