Citation Nr: 21003433 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-25 450 DATE: January 21, 2021 ORDER A rating in excess of 10 percent for left ankle posttraumatic arthritis is denied. A rating in excess of 10 percent for left knee arthritis (limited extension) is denied. From May 1, 2019 onward, a rating in excess of 20 percent for left knee arthritis (limited extension) is denied. For the period on appeal, a rating of 10 percent, but no higher for left knee arthritis (painful flexion and functional loss) is granted. A rating of 10 percent, but no higher, for the Veteran’s left knee disability (instability) is granted. A rating of 20 percent, but no higher, for the Veteran’s left knee disability based on a meniscus tear is granted. A rating in excess of 10 percent for right knee arthritis is denied. A rating of 30 percent, but no higher, for gastroesophageal reflux disease (GERD) is granted. A compensable rating for an appendectomy scar is denied. A rating in excess of 10 percent for a painful appendectomy scar is denied. A total rating based on individual unemployability (TDIU) is granted effective September 17, 2016. REMANDED Entitlement to a rating in excess of 30 percent for lichen sclerosis prior to July 23, 2019 is remanded. Entitlement to a rating in excess of 30 percent prior to March 4, 2015, and a compensable rating for granuloma annulare thereafter is remanded. FINDINGS OF FACT 1. The Veteran’s left ankle disability is manifested by pain resulting in moderate limitation of motion. 2. Prior to May 1, 2019, the Veteran’s left knee has had extension of greater than 10 degrees. 3. From May 1, 2019, onward, the Veteran’s left knee has had extension of greater than 15 degrees. 4. For the period on appeal, the competent and probative evidence shows that the Veteran’s left knee has painful flexion causing functional loss. 5. For the period on appeal, the Veteran’s left knee disorder is manifested by symptoms such as frequent episodes of locking, pain, and swelling for the period on appeal. 6. For the period on appeal, the Veteran’s left knee instability was slight. 7. For the period on appeal, the Veteran’s right knee has had flexion of greater than 130 degrees. 8. The Veteran’s GERD is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation productive of considerable impairment of health. 9. The Veteran’s appendectomy scar is painful. 10. The Veteran’s 11 square centimeter scar is not of the head, face, or neck, and is not a burn scar. 11. The Veteran’s service-connected disabilities rendered her unable to secure or follow substantially gainful employment consistent with his education and work history from September 17, 2016 onward. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left ankle disability are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5270-5274. 2. Prior to May 1, 2019, the criteria for a rating in excess of 10 percent for the left knee disorder (limited extension) are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5003-5261. 3. From May 1, 2019 onward, the criteria for a rating in excess of 20 percent for the left knee disorder (limited extension) are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5003-5261. 4. For the period on appeal, the criteria for a rating of 10 percent, but no higher, for the left knee disorder (limited flexion) are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. 5. For the period on appeal, the criteria for a rating of 20 percent for the left knee disorder (semilunar) are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5258. 6. For the period on appeal, the criteria for a rating of 10 percent, but no higher, for the left knee disorder (instability) are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 7. For the period on appeal, the criteria for a rating in excess of 10 percent for the right knee disorder (limited flexion) are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. 8. The criteria for a 30 percent rating, but no higher, for GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.114, DC 7399-7346. 9. The criteria for an initial rating in excess of 10 percent for a painful scar are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DCs 7804. 10. The criteria for a compensable rating for appendectomy scar are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DCs 7800-7805. 11. The criteria for TDIU are met since September 17, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from May 1981 to May 2001. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in March 2019; a transcript is of record. These matters were last before the Board in October 2019, when they were remanded for additional development. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as examinations were scheduled and performed. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Arthritis due to trauma is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes “additional functional loss i.e., ‘the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’ including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995).   The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. “The question of whether a particular medical issue is beyond the competence of a layperson—including both claimants and Board members—must be determined on a case-by-case basis.” Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to “exercise.” Passive exercise “is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient’s own body.” Id. at 658. Active exercise is “motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part.” It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran’s joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. The competent evidence of record does not tend to indicate that the structural integrity of the Veteran’s service-connected joints is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran’s range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. It is acknowledged some of the examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development for this purpose or for obtaining retrospective opinions would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). As noted below, the examination reports contain evidence regarding the frequency, severity, and duration of the Veteran’s pain level during flare-ups per her report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran’s service-connected disabilities. As such, the Board finds that it has adequate competent evidence when viewed in total to assess the Veteran’s disability picture. Additionally, to the extent that words such as “moderate,” and “severe” are not defined in the Rating Schedule, VA must evaluate all evidence, to the end that decisions will be equitable and just rather than applying a mechanical formula. 38 C.F.R. § 4.6. The Board turns to a dictionary to define these terms. In this regard, moderate is generally defined as “tending toward the mean or average amount.” Merriam-Webster’s Collegiate Dictionary 798 (11th ed. 2003). Severe is generally defined as “of a great degree” or “serious.” Id. at 1140. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). 1. Entitlement to a rating in excess of 10 percent for left ankle posttraumatic arthritis. The Veteran is rated at 10 percent disabling under DC 5010-5271 for her left ankle disability. Under Diagnostic Code 5271, a 10 percent rating is warranted where there is moderate limitation of motion of the ankle, and a 20 percent rating is warranted where there is marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. While the schedule of ratings does not provide any information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in VA’s proposed rule titled “Schedule for Rating Disabilities; Musculoskeletal System and Muscle Injuries.” 82 Fed. Reg. 35,719 (Aug. 1, 2017). Here, VA proposes to amend DC 5271 to define marked limitation of motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. VA also proposes to define moderate limitation of motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. VA states that the change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel. Id. at 35,723. VA issued a final rule on this proposed regulation, but it is not effective until February 7, 2021. VA Final Rule, Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453 (Nov. 30, 2020). The Board may consider the guidance in the final rule as a factor when looking at the totality of the Veteran’s left ankle disability picture. Ankle disabilities can be rated under Diagnostic Codes 5270 (ankylosis of the ankle); 5272 (ankylosis of the subastragalar or tarsal joint); 5273 (malunion of os calcis or astragalus); and 5274 (astragalectomy). 38 C.F.R. § 4.71a, DCs 5270-5274. The Veteran underwent an examination for her ankle disability in March 2013. She reported that her ankle was painful when standing for extended periods or if walking. She used over the counter medication. She had mild swelling at the time. She reported flare-ups where she would need to sit and rest. She had plantar flexion of 30 degrees without painful motion and plantar dorsiflexion of 10 degrees with painful motion. She was able to perform three times repetitive use testing with the same range of motion. Her functional loss included less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, and mild antalgic gait that was attributed to her ankle and bilateral knee disabilities. She had localized tenderness/pain on palpation. She had reduced muscle strength for her ankle dorsiflexion (4/5 active movement against some resistance). Her joint stability testing (anterior drawer test and talar tilt test) were normal. She did not have ankylosis, “shin splints,” stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or a talectomy (astragalectomy). Her most recent ankle examination is from December 2019. She reported frequent (monthly) flare-ups and that she had functional loss in that she could not walk or stand for more than 15 minutes. She had dorsiflexion of 15 degrees and plantar flexion of 40 degrees both of which had pain that caused functional loss. She did not have pain on weight-bearing, localized tenderness/pain on palpation, or crepitus. She was able to perform three times repetitive use testing with no additional loss of function or range of motion. While she was not examined immediately after repetitive use over time or during flare-ups, the examination was medically consistent with her statements. Pain, weakness, and lack of endurance significantly limited functional ability with repeated use over time and during flare-ups. For repeated use and during flare-ups, her range of motion for dorsiflexion was 10 degrees and plantar flexion was 30 degrees. She had less movement than normal, weakened movement, disturbance of locomotion, and interference with standing. She had reduced muscle strength for dorsiflexion (4/5 active movement against some resistance). She did not have muscle atrophy or ankylosis. While ankle instability or dislocation was suspected, she did not have laxity for her anterior drawer test or talar tilt test. She did not have ankylosis, “shin splints,” stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or a talectomy (astragalectomy). She had pain with passive range of motion but not with non-weight bearing. Her range of motion for passive range of motion was the same as active testing. The Veteran’s attorney has asserted that she is entitled to an extraschedular rating. Private treatment records show that she had full range of motion of the left ankle in November 2018. After reviewing the competent and probative medical and lay evidence, the Board finds that a rating in excess of 10 percent for the left ankle is not warranted. The Veteran has had dorsiflexion of at least 10 degrees during flare-ups or after repetitive use (5 degrees of limited motion for higher rating), and plantar flexion of at least 30 degrees during flare-ups or after repetitive use (10 degrees of limited motion for higher rating) during the period on appeal. The Board acknowledges her pain on passive range of motion testing. However, she retained functional ability of at least 10 degrees of dorsiflexion and 30 degrees of plantar flexion. As such, the preponderance of the evidence is against an initial rating in excess of 10 percent. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A higher rating under DC 5003 is not warranted as the Veteran has not had incapacitating episodes. Additionally, separate and/or higher ratings are not warranted under Diagnostic Codes 5270, 5272, 5273, or 5274 because the weight of the competent and probative evidence is against a finding of ankylosis, malunion of os calcis or astragalus, or astragalectomy. For example, the examination reports, as discussed above, did not reflect ankylosis of the ankle or any other diagnosis. Lastly, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 10 percent rating already contemplates and compensates the Veteran for any functional loss due to pain in the ankle, to include pain and limited motion. Deluca, 8 Vet. App. at 204-07. For example, as noted above, the medical reports reflect that she had some pain as well as increased pain during extensive walking. In light of the foregoing, the Board finds that an increased rating due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. Referral for Extraschedular Consideration As the Veteran’s representative raised entitlement to an extraschedular rating, the Board has also considered whether an extraschedular rating is warranted for the service-connected ankle during the relevant period on appeal. In support, the attorney cited the March 2013 examination report in support of marked interference. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits of the Director, Compensation Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Id. Recently, the Court revisited the meaning of Thun's first element, holding that it is not “a mechanical test that is satisfied whenever a veteran presents a symptom not expressly listed in the [DC].” Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Vet. App. Dec. 30, 2020). The key to the first Thun element is exceptionality and requires a "totality of the factors" inquiry. The Court held that “the sole focus of Thun's first step is on the ability of the ratings schedule to evaluate any impairment manifested by the veteran's symptomology" and that symptomology "is exceptional . . . when it is of such nature or severity that conventional ratings tools are not adequate to evaluate it properly.” Id. at *10. The Court further noted that "functional effects" are relevant to Thun's second step, while symptoms and functional impairments are the "operative focus" of Thun's first step. Id. at *12. The Board finds that referral for extraschedular consideration is not warranted after reviewing the totality of relevant factors. The record reflects that the Veteran’s ankle disability is characterized by reduced range of motion, pain with movement, disturbance of locomotion, and interference with standing. The schedular criteria consider reduced range of motion of the ankle and associated factors of disability, including pain. However, the criteria do not directly consider disturbance of locomotion or interference with standing, but the second element of Thun is not met as here as the evidence in the record does not tend to show that the Veteran’s ankle disability causes marked interference with employment or requires hospitalization. The Board acknowledges that the examiner noted in March 2013 that there was a functional impact on the Veteran’s ability to work. However, the examiner also reported that the Veteran lost her prior employment in 2012. Her position was primarily sedentary and her ability to perform her job responsibility was not affected by her left ankle disability. The Board finds that such evidence of functional impairment is not evidence tending to show marked interference with employment. See Merriam-Webster, Marked, https://www.merriam-webster.com/dictionary/marked (defining “marked” to include as “having distinctive or emphasized character”) (last visited Jan. 19, 2021). Therefore, the Board has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. 2. Entitlement to a rating in excess of 10 percent prior to May 1, 2019 and 20 percent thereafter for left knee arthritis. 3. Entitlement to a rating in excess of 10 percent for right knee arthritis. The Veteran is rated at 10 percent disabling for her left knee arthritis prior to May 1, 2019 under DC 5003-5261. The RO increased her rated to 20 percent effective May 1, 2019. She received a temporary total rating between December 18, 2018 and May 1, 2019. The Veteran is rated at 10 percent disabling for her right knee arthritis under DC 5010-5260. Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, DC 5257 covers “other impairment of the knee,” and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. Additionally, DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; this warrants a 20 percent rating. DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating. Other DCs concern motion and under DC 5260 leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. Leg extension limited to 30 degrees warrants a 40 percent rating. Leg extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. The Veteran underwent an examination for her bilateral knee disabilities in March 2013. She reported sharp pain in the right knee with prolonged standing and weightbearing. She reported flare-ups where she was unable to walk and/or could not climb stairs. She had right knee flexion of 130 degrees without pain, and normal extension without pain. She had 125 degrees of flexion for her left knee with pain and negative five degrees of extension without pain. She was able to perform three times repetitive use testing with no additional loss of range of motion. Her functional loss included: less movement than normal (bilaterally); and, weakened movement, excess fatigability, and pain on movement (all for her left knee). She had pain on palpation for her left knee. She had reduced muscle strength (4/5 active movement against some resistance) for her left knee flexion and extension. She had normal joint stability testing (Lachman, Posterior drawer, Medial-lateral) and did not have a history or evidence of recurrent patellar subluxation/dislocation. She did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. She had a history of a meniscectomy with residual left knee pain. A meniscus (semilunar condition) was reported with frequent episodes of joint pain. She occasionally used a brace. She participated in an examination in January 2019. She reported flare-ups when standing. She had functional loss with standing for extended periods and with stairs. Her right knee range of motion testing was normal, but she had pain on flexion which caused functional loss. She did not have pain with weight bearing, but had slight tenderness to palpation. There was no objective evidence of crepitus. She was able to perform three times repetitive use testing with no additional functional loss or range of motion. While she was not immediately examined after repetitive use over time or during flare-ups, the examination was medically consistent with her statements describing functional loss after repetitive use and during flare-ups. She had normal muscle strength, no atrophy, and no ankylosis. She did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Her joint stability testing (Lachman, posterior drawer, medial and lateral instability) were normal. She did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. She had pain on passive range of motion testing, but not with non-weight bearing. While the 2019 examiner did not report a history of recurrent effusion, imaging from October 2018, which was included in the examination report documented small joint effusion for the left knee. As the Veteran was convalescing for her left knee disability (had surgery on it in December 2018) during this examination, the Board finds the probative value is limited to her right knee findings. An addendum reported her estimated range of motion and that pain significantly limited functional ability after a period of repetitive use over time and during flare-ups. She had 135 degrees of flexion and normal extension during repetitive use over time and during flare-ups for her right knee. Her most recent examination is from December 2019. She reported flare-ups that occurred all the time. She had functional loss in that she had difficulty with walking, standing, climbing stairs, and that she could not exercise, kneel or squat. She had difficulty with lifting. At the examination, her right knee flexion and extension were normal, but she had pain on flexion. There was no evidence of pain on weight bearing, but she had mild tenderness. She did not have objective evidence of crepitus. For her left knee, she had 130 degrees of flexion and 15 degrees of extension, both with pain. She had pain with weight-bearing and localized tenderness, but no crepitus. She was able to perform three times repetitive use testing with no additional loss of function. Pain significantly limited functional ability with repeated use over a period of time for her right knee and pain, weakness, and lack of endurance limited functional ability for her left knee. While she was not examined during flare-ups, pain (pain, weakness, and lack of endurance for her left knee) significantly limited functional ability with flare-ups. Concerning repeated use over a period of time and during flare-ups, she had right knee flexion of 130 degrees and normal extension and left knee flexion of 120 degrees and extension of 15 degrees. She had less movement than normal, disturbance of locomotion and interference with standing. She had normal muscle strength for her right knee and reduced for her left knee flexion and extension (4/5 active movement against some resistance). She did not have atrophy or ankylosis. She did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Her joint stability testing (Lachman, posterior drawer, medial and lateral instability) were normal. She had pain on passive range of motion and in non-weight bearing. The examiner reported passive range of motion was the same as active. Her left knee meniscus tear from 2006 with partial meniscectomy was reported. It was reported that she had left knee locking that would cause her to fall, but she did not have flare-ups with effusion as reported on imaging in December 2019. Additionally, her medical records show she reported increased left knee joint pain with occasional locking and popping sounds in September 2016. Her medical records show catching, locking, popping, clicking, and stiffness in November 2018. She had an arthroscopic partial medial meniscectomy in December 2018. She testified at the 2019 Board hearing that her right knee would give out on her when walking up steps that had begun two years prior. The Veteran’s attorney has asserted that she is entitled to an extraschedular rating for both knees as well as a rating under DC 5259 for her left knee. Left Knee After review of the competent and probative evidence, the Board finds that a rating in excess of 10 percent under DC 5003-5261 is not warranted prior to May 1, 2019. In this regard, she had negative extension at the 2013 examination (degrees limited to 15 degrees to warrant the next higher 20 percent rating). Moreover, her relevant medical records do not show extension limited to 15 degrees or less. Additionally, a rating in excess of 20 percent from May 1, 2019 onward is also not warranted. She has had extension of at least 15 degrees (limited to 20 degrees to warrant the next higher 30 percent rating). As such, the Board finds that the competent and probative evidence does not tend to show a higher rating. Therefore, a rating in excess of 10 percent and 20 percent from May 1, 2019 onward is not warranted based on extension. Additionally, the Board finds that a compensable rating for her left knee is warranted under DC 5260 (flexion) for the period on appeal. At the March 2013 examination, the Veteran’s flexion was limited to 125 degrees with pain and the evidence shows she had had pain that caused functional loss. The Board acknowledges that as noted above, the Veteran has had flexion of 125 degrees, which typically does not warrant a compensable rating. However, at the examination, she has had pain and functional loss. This report indicates that there was less movement than normal, weakened movement, excess fatigability, and pain on movement, and the Board finds that his symptoms are more nearly approximated by a rating of 10 percent for limited flexion under DC 5260 and functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45 ); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Moreover, the Board finds several factors produce a disability picture more nearly approximated by a compensable schedular rating. In this regard, the Veteran reports flare-ups, pain, and has had documented disturbance of locomotion, and interference with sitting, standing, and pain on movement. Moreover, during this period on appeal, the Board finds that a separate rating under DC 5257 is warranted as the evidence shows that the Veteran has knee instability based on her medical records and her lay testimony. See English v. Wilkie, 30 Vet. App. 347. 352-53 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). The Veteran has stated that her left knee gives out. The Board acknowledges the medical testing showing normal stability. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity. However, when resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 10 percent is warranted for the period on appeal as she reported that her knee has given out. A higher rating is not warranted as there is not competent evidence of instability (positive instability testing) or 3/5 weakness during this period on appeal as shown in the medical records and the examination reports (reflecting normal joint stability testing by a competent medical professional). Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value and given great weight. Nor does the Veteran assert that her knee gives out frequently. This tends to weight against moderate subluxation or lateral instability. As such, a rating in excess of the now assigned 10 percent is not warranted under DC 5257. The Board also finds that a separate rating of 20 percent under DC 5258 is warranted for the Veteran’s left knee for the period on appeal. She has had a documented left knee meniscus tear and had a partial meniscotomy. Additionally, the evidence shows locking, pain, and swelling. The Board acknowledges that, at times, the Veteran does not have effusion in her left knee. However, when resolving reasonable doubt in favor of the Veteran, the evidence tends to show episodes of swelling in her left knee in addition to locking and pain. Moreover, the Board finds the pain associated with the Veteran’s meniscus tear is separate than the pain associated with her painful range of motion. As such, a rating of 20 percent is warranted for the period on appeal.   As the Veteran is now receiving a 20 percent rating under DC 5258, a separate rating under 5259 would constitute impermissible pyramiding, and the Board finds a separate rating under DC 5259 is not warranted without discontinuing the rating under DC 5258. Here, DC 5258 provides the greater benefit. As a result, a rating under DC 5259 is not warranted. 38 C.F.R. § 4.14. Additionally, ratings under 5256 and 5262 are also not warranted as the Veteran does not have ankylosis or impairment of the tibia and fibula. A higher rating under DC 5003 is not warranted as the Veteran has not had incapacitating episodes. Right Knee The Veteran is rated at 10 percent disabling for her right knee arthritis under DC 5010-5260. After review of the competent and probative evidence, the Board finds that a higher rating under DC 5260 is not warranted for the period on appeal. The Veteran has had 130 degrees of flexion or greater as shown at the above examinations. In this regard, the Veteran’s flexion is not limited to 30 degrees or less to warrant the next higher 20 percent rating. Moreover, her relevant medical records do not show flexion limited to 30 degrees or less. Therefore, a rating in excess of 10 percent is not warranted. Additionally, the Board finds that a rating for limited extension is not warranted under DC 5261. The Veteran has had normal extension (zero degrees) without pain during the period on appeal as shown on the examination reports. The Board has explored if a separate rating under DC 5257 is warranted, but it finds that the evidence does not support such. In this regard, the Veteran’s stability testing has been normal during the period on appeal, to include as described above at the examinations. The medical findings regarding instability, dislocation, and subluxation are probative as to the presence of these conditions. As noted in the section regarding the left knee, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity. Furthermore, a rating under DC 5258 is not warranted for the Veteran’s right knee as the Veteran does not have a meniscal condition for her right knee. In support, the examinations specifically found that the Veteran does not now and had not ever had a right knee meniscus condition. Likewise, a separate rating is not warranted under DC 5259 as the competent evidence does not show removal of symptomatic semilunar cartilage. Additionally, ratings under 5256 and 5262 are also not warranted as the Veteran does not have ankylosis or impairment of the tibia and fibula. Lastly, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 10 percent rating already contemplates and compensates the Veteran for any functional loss due to pain affecting the right knee, to include any pain and limited motion. Deluca, 8 Vet. App. at 204-07. For example, as noted above, the medical reports reflect that she had pain. In light of the foregoing, the Board finds that increased ratings due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. In this regard, VA regulations state that the knee is considered a single major joint. 38 C.F.R. § 4.45. Referral for Extraschedular Consideration As the Veteran’s representative raised extraschedular entitlement, the Board has also considered whether an extraschedular rating is warranted for the service-connected knees during the relevant period on appeal. The attorney cited the March 2013 examination report in support of marked interference. The Board finds that referral for extraschedular consideration is not warranted after reviewing the totality of relevant factors. The record reflects that the Veteran’s bilateral knee disability is characterized by reduced range of motion, pain with movement, disturbance of locomotion, and interference with standing. The schedular criteria consider reduced range of motion and associated factors of disability, including pain. However, the criteria do not directly consider disturbance of locomotion or interference with standing, but the second element of Thun is not met as here as the evidence in the record does not tend to show that the Veteran’s bilateral knee disability causes marked interference with employment or requires hospitalization. The Board acknowledges that the examiner noted in March 2013 that there was a functional impact on the Veteran’s ability to work. However, the examiner also reported that the Veteran lost her prior employment in 2012. Her position was primarily sedentary and her ability to perform her job responsibility was not affected by her bilateral knee disability. The Board finds that such evidence of functional impairment is not evidence tending to show marked interference with employment. Therefore, the Board has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted as it is not exceptional. 4. Entitlement to a rating in excess of 10 percent for GERD. The Veteran is rated at 10 percent for her GERD under DC 7399-7346 throughout this rating period on appeal. Regulations provide that when a disability not specifically provided for in the Rating Schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. 38 C.F.R. § 4.20. Because the Veteran’s specific diagnosis was not listed in the Rating Schedule, Diagnostic Code 7399 was assigned pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded first by the numbers of the most closely related body part and “99.” See 38 C.F.R. § 4.20. Here, the most closely analogous diagnostic code was Diagnostic Code 7346 for hiatal hernia. Under Diagnostic Code 7346, a 10 percent rating is applicable to conditions with two or more of the symptoms listed in the 30 percent criteria of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Finally, the maximum, 60 percent disability rating requires pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of serious impairment of health. Additionally, other potentially applicable sections include Diagnostic Code 7327, for diverticulitis, that states to rate as irritable colon syndrome. DC 7319 provides to rate severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress as 30 percent. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Veteran underwent an examination for her GERD in March 2013. The examiner diagnosed GERD and hiatal hernia. She reported that food felt stuck in her mid-chest area, and she had increased heartburn and reflux symptoms. She took continuous medication (Omeprazole 20mg). She had persistent recurrent epipastic distress, dysphagia, pyrosis (heartburn), reflux, regurgitation, and sleep disturbances caused by esophageal reflux and nausea (mild) that occurred 4 or more times per year that lasted 1-9 days; her vomiting was mild, but occurred 4 or more times per year but lasted less than a day. She did not have an esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. Her most recent examination is from December 2019. She used continuous medication including omeprazole and Rolaids. She reported flare-ups that would last for a few days and that she could not eat or do anything. She had reflux, regurgitation, substernal pain, nausea that occurred three times per year and lasted one to nine days; and vomiting that occurred four or more times per year and lasted between one and nine days. She did not have an esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. For her diverticulitis, she had abdominal distension and pressure with gas. It was reported that she had episodes of bowel disturbance with abdominal distress that was occasional. She did not have weight loss, malnutrition, or tumors. She testified at the 2019 Board hearing that her GERD had worsened because of medication. She had indigestion and regurgitation. After review of the competent and probative evidence, the Board finds that a rating of 30 percent is warranted for the period on appeal. In this regard, she has had peristent recurrent epipastic distress, dysphagia, heartburn, reflux, regurgitation, and sleep disturbances. These symptoms can occur more than four times per year and last up to nine days. The Board acknowledges her mild vomiting, and that she did not have an esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. However, when resolving reasonable doubt in favor of the Veteran, the Board finds that her symptoms are more nearly approximated by a 30 percent rating for the period on appeal. A rating of 60 percent is not warranted. The Board again acknowledges her vomiting. However, it has been described mild, to include at the 2013 VA examination. Additionally, there is no indication from the Veteran’s contentions and/or statements, or the medical evidence of record, that she has had material weight loss, hematemesis or melena with moderate anemia, or other symptoms that are productive of serious impairment of her health. As such, the next-higher rating has not been more nearly approximated. 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a compensable rating for an appendectomy scar. 6. Entitlement to a rating in excess of 10 percent for a painful appendectomy scar. The Veteran receives a noncompensable rating for her appendectomy scar under DC 7805. She also receives a 10 percent rating under DC 7804. During the pendency of this appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were substantively amended. When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board has considered all applicable criteria in evaluating the Veteran’s claims. The pertinent skin regulations are as follows. October 23, 2008 to August 13, 2018 Diagnostic Code 7800 provides for burn scars of the head, face or neck, scars of the head, face or neck due to other causes, or other disfigurement of the head, face, or neck. The particular criteria set out under Diagnostic Code 7800 provide for a 10 percent rating with one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. Under the DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are evaluated as: area or areas of 144 square inches (929 sq. cm) or greater (40 percent); area or areas of at least 72 square inches (465 sq. cm) but less than 144 square inches (929 sq. cm) (30 percent); area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) (20 percent); and area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm) (10 percent). Under the DC 7802, scars not of the head, face or neck, which are superficial and nonlinear are granted a 10 percent rating if they cover an area of 144 square inches or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2017). Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Under the Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be rated under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). Under Diagnostic Code 7806, a 10 percent disability rating is warranted when at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent, of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. Id. at DC 7806. August 13, 2018 onward Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA’s intent is that claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). DC 7800 remained the same. DC 7801 was amended to remove “deep and nonlinear scars” which was replaced with “underlying soft tissue damage.” Diagnostic Code 7802 was amended to remove “superficial and nonlinear” and was replaced with “not associated with underlying soft tissue damage.” Note (1) now provides that for purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) changed to a separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. Diagnostic Codes 7804 and 7805 were unaffected by the 2018 recent revisions. The Veteran underwent an examination for her scars in March 2013. She had a painful scar that had mild keloid formation and hyperpigmentation, but no inflammation or breakdown. It was not tender to palpation. However, the examiner reported that the Veteran had five or more painful scars. In looking at the totality of the scars examination report, the Board is led to believe that this was a misstatement as only one scar was reported in the remainder of the report – that of a linear scar on her anterior trunk. Her scar was not unstable, was linear, and was 11 centimeters. She testified at the 2019 Board hearing that her scar was painful. She reported that physicians had told her that she had a dystocia behind her scar. The December 2019 opinion reported that her scar was painful and it was possible that she had diastasis recti underneath the scar. However, there was no indication that it was unstable. After review of the competent and probative evidence, a rating in excess of 10 percent is not warranted as there are not three or more scars that are painful. Moreover, her scars are not both painful and unstable. The Board acknowledges the Veteran’s attorney’s representation that the Veteran is competent to report that her scar is unstable. However, there is no indication that her scar is unstable as shown in the above medical examinations. The finds the records of trained medical examiners conducting examinations specifically for scars outweighs the Veteran’s competent lay statements. Regarding other possible ratings during the period on appeal, a compensable rating under DC 7802 is not warranted as the Veteran does not have scars of at least 144 square inches. Moreover, she does not have burn scars or scars of the head, face or neck, and a compensable rating under DC 7800 (old and current criteria) is not warranted. Nor does the Veteran have scars of at least six square inches, and a rating under DC 7801 is not warranted. As such, the scar does not meet any of the requirements for a compensable rating under DCs 7800-7802. Thus, a noncompensable rating is warranted under Diagnostic Code 7805. 7. Entitlement to a total rating based on individual unemployability. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability 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. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that “a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case.” Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016). Regardless of the method, “if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability.” Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran’s service-connected disabilities include lichen sclerosis at 30 percent, left knee arthritis at 10 percent and the now assigned 10 percent (limited flexion), 10 percent (instability), and 20 percent ratings (meniscectomy); right knee arthritis (secondary to left knee) at 10 percent; GERD now at 30 percent; left ankle arthritis at 10 percent; and a painful scar at 10 percent. She has a combined rating of 70 percent or higher with her knee disabilities rated at a combined 40 percent or higher from September 12, 2012. Therefore, her evaluation for compensation due to her service-connected disabilities met the percentage rating standards for TDIU under 38 C.F.R. § 4.16(a) from September 12, 2012 onward. The Veteran’s VA Form 21-8940 reported that she last worked fulltime on September 17, 2016. She previously worked for the U.S. Census Bureau, the State of Michigan, and in a passport related position. She has some college education. The March 2013 examination reported on the functional impact of the Veteran’s service-connected disabilities. Her service-connected knee and ankle disabilities would hinder physically intensive employment as she had difficulty with prolonged standing and walking. Her skin disorders caused her to miss work because of significant itching, bleeding, and the need for medical treatment. Her 2019 examination continued to find that she would have difficulty in a laborious position due to her service-connected knees. Her ankle continued to cause impairment with walking and standing. She testified at the 2019 Board hearing regarding the effects the service-connected disabilities had on her ability to maintain employment. She was unable to concentrate because of sleep impairment caused by her skin disabilities. She also had impaired concentration due to her skin itching at work. She would also have to change her clothes frequently because of skin medication. She stated that she last worked in 2016. In this case, the record reflects that the Veteran suffered from service-connected disabilities which hindered her ability to maintain gainful employment from September 17, 2016 (the date of her last employment) onward. The Veteran’s service-connected orthopedic disabilities (left and right knee and ankle) hinder any physically intensive position as the Veteran is unable to stand or walk for longer than fifteen minutes. She also has difficulty with climbing stairs. Concerning sedentary employment, the Veteran’s service-connected skin disabilities prevent gainful employment. In this regard, she has intense itching and bleeding which affect her sleep. She has difficulty concentrating during the day due to lack of sleep as well as her skin itching. She previously missed work due to medical treatment for her skin and she frequently would have to change clothes because of the skin medication. The Board finds that her impaired concentration due to her lack of sleep and skin disabilities would prevent gainful employment in a sedentary position. As such, when resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected disabilities prevented her from being able to secure or follow a substantially gainful occupation from September 17, 2016 onward. REASONS FOR REMAND 1. Entitlement to a rating in excess of lichen sclerosis prior to July 23, 2019 is remanded. 2. Entitlement to a rating in excess of 30 percent prior to March 4, 2015, and a compensable rating thereafter for granuloma annulare is remanded. The Veteran received a 30 percent rating for her lichen sclerosus prior to July 23, 2019, when the RO increased her rating to 60 percent (the maximum schedular rating). She received a 30 percent rating prior to March 4, 2015, and a noncompensable rating thereafter for her granuloma annulare under DC 7806-7819. The September 2016 rating decision granted a 30 percent rating for granuloma annulare effective October 15, 2013 until March 4, 2015 and a 30 percent rating for lichen sclerosus effective July 22, 2016. Claims pending prior to the effective date of the revised criteria will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32592 (July 13, 2018). The Veteran’s claim was pending prior to the effective date of the new criteria; therefore, the Board must consider the claim under the previous and new rating criteria. Prior to August 13, 2018, under DC 7806, a 30 percent evaluation would be warranted if the skin condition covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. From August 13, 2018 onward, a 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Additionally, effective August 31, 2018, VA regulations now explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). The Veteran underwent an examination for lichen sclerosis in March 2013. She took Clobetasol ointment daily for her lichen sclerosis. Her granuloma annulare was also addressed in the skin examination. It affected less than five percent of the total body area. The Veteran reported significant itching and bleeding. She participated in an additional skin examination in September 2016. She reported using prednisone 20 mg (systemic corticosteroid/immunosuppressive medication) and clobetasol, triamcinolone, and Protopic (topical corticosteroids) constantly or near constantly over the past 12 months. Her most recent examination is from December 2019. Her medications included topical tacrolimus, topical clobetasol, topical halobetasol, topical triamcinolone, topical zinc oxide, oral prednisone, oral hydroxyzine. Both skin disabilities affected less than five percent of total body area, and her granuloma annulare affected less than five percent of her exposed area. Her medical records show she had phototherapy treatment in October 2013. Over 25 percent of her body was affected Her medical records also report she used Triamcinolone 0.5% as well as Protopic (Tacrolimus) ointment. Her lichen sclerosis worsened in September 2016. She began to take halobetasol in 2018. She has also used Temovate .05%. Private treatment records in 2019 showed her skin conditions were inadequately controlled. In 2020, her granuloma annulare manifested on both arms and her sternal notch. She testified at the 2019 Board hearing that she has daily itching and pain and her skin conditions hinder her ability to maintain employment as she is unable to sleep. Moreover, they affect her concentration and she frequently changes her clothes. She had difficulty picking up objects. A lay statement described her symptoms included pain, burning, and itchiness. Additionally, she had difficulty performing daily tasks. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Warren v. McDonald, 28 Vet. App. 194, 197 (2016), the Court held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to “corticosteroids or other immunosuppressive drugs;” rather, compensation is available for “all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs.” Finally, in Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. In light of the above, and as this appeal was pending prior to August 13, 2018, the Board finds that a remand is needed to determine whether the Veteran’s constant or near-constant use of topical corticosteroids operated by affecting the body as a whole in treating her service-connected skin disability. These matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician. The clinician must be provided with and review the entire claims file, to include a copy of this Remand.   2. If deemed necessary by the clinician in order to provide the requested opinion, schedule an examination. Following a review of the evidence of record, to include the lay statements, the clinician is to address: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s use of Prednisone, Clobetasol, Triamcinolone, Protopic, Tacrolimus, Halobetasol, topical zinc oxide, oral Hydroxyzine, Temovate .05 percent, as noted at the VA examination reports discussed above and medical records, constitute systemic therapy in that they are of sufficient scale to affect the body as a whole. In doing so, the examiner is to discuss the method by which the treatment works AND its side effects; (b.) For each determined to constitute systemic therapy, is the Veteran’s Prednisone, Clobetasol, Triamcinolone, Protopic, Tacrolimus, Halobetasol, topical zinc oxide, oral Hydroxyzine, Temovate .05 percent treatment similar to corticosteroids or other immunosuppressive drugs. **Additionally, the clinician is to indicate whether any other (i) medication identified in the Veteran’s records is considered a corticosteroid or other immunosuppressive drug OR is (ii) like a corticosteroid or other immunosuppressive drug.** If either inquiry is answered affirmatively, the clinician is to identify any such medication by name. 3. The examiner is to also discuss whether there are periods of time in which the disorders flared up, and if so the duration, frequency and severity of such flare-ups, to include an assessment of the size of the area affected during such flare-ups. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, 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.