Citation Nr: 21003882 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 09-01 955 DATE: January 25, 2021 ORDER A separate 20 percent rating for the appeal period prior to May 10, 2011, but no higher, for residuals of dislocated semilunar cartilage of the left knee is granted. A separate 20 percent rating for the appeal period prior to May 4, 2019, but no higher, for residuals of dislocated semilunar cartilage of the right knee is granted. A separate 10 percent rating for the appeal period prior to May 4, 2019, but no higher, for slight lateral instability of the right knee is granted. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis, for the appeal period prior to May 10, 2011, is denied. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis, for the appeal period prior to May 4, 2019, is denied. Entitlement to a rating in excess of 30 percent for left knee osteoarthritis with total replacement, for the appeal period beginning on May 10, 2011, is denied. Entitlement to a rating of in excess of 30 percent for status-post right total knee arthroplasty, for the appeal period from July 1, 2020 to October 2, 2020, is denied. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) for the appeal period beginning on July 1, 2012 is granted. REMANDED Entitlement to a rating of a TDIU on an extraschedular basis for the appeal period prior to July 1, 2012 is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the evidence of record suggests that the Veteran is entitled to a separate 20 percent rating for the appeal period prior to May 10, 2011, but no higher, for residuals of dislocated semilunar cartilage of the left knee, and this represents a maximum schedular rating under the appropriate diagnostic code. 2. Resolving all reasonable doubt in the Veteran’s favor, the evidence of record suggests that the Veteran is entitled to a separate 20 percent rating for the appeal period prior to May 4, 2019, but no higher, for residuals of dislocated semilunar cartilage of the right knee, and this represents a maximum schedular rating under the appropriate diagnostic code. 3. Resolving all reasonable doubt in the Veteran’s favor, the evidence of record suggests that the Veteran is entitled to a separate 10 percent rating appeal period prior to May 4, 2019 for slight knee stability on the right knee. 4. For the appeal period prior to May 10, 2011, the Veteran’s left knee osteoarthritis, did not manifest as limitation of flexion to 30 degrees, limitation of extension to 15 degrees, ankylosis, malunion or non-union of the tibia and fibula, or genu recurvatum of the left knee. 5. For the appeal period prior to May 4, 2019, the Veteran’s right knee osteoarthritis did not manifest as limitation of flexion to 30 degrees, limitation of extension to 15 degrees, ankylosis, malunion or non-union of the tibia and fibula, or genu recurvatum of the right knee. 6. For the appeal period beginning on May 10, 2011, the Veteran’s left knee osteoarthritis with total replacement manifested as intermediate degrees of residual weakness, pain and limitation of motion without chronic residuals consisting of severe painful motion or weakness. 7. For the appeal period beginning on July 1, 2020, the Veteran’s status-post right total knee arthroplasty manifested as intermediate degrees of residual weakness, pain and limitation of motion without chronic residuals consisting of severe painful motion or weakness. 8. For the appeal period beginning on July 1, 2012, and resolving all reasonable doubt in the Veteran’s favor, the Veteran’s service-connected disabilities rendered him incapable of obtaining and maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for a separate 20 percent rating appeal period prior to May 10, 2011, but no higher, for residuals of dislocated semilunar cartilage of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Code 5258. 2. The criteria for a separate 20 percent rating appeal period prior to May 4, 2019, but no higher, for residuals of dislocated semilunar cartilage of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Code 5258. 3. The criteria for a separate 10 percent rating for the appeal period prior to May 4, 2019, but no higher, for slight lateral instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Code 5257. 4. The criteria for entitlement for a rating in excess of 10 percent for left knee osteoarthritis, for the appeal period prior to May 10, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Codes 5010, 5260. 5. The criteria for entitlement for a rating in excess of 10 percent for right knee osteoarthritis, for the appeal period prior to May 4, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Codes 5010, 5260. 6. The criteria for entitlement to a rating in excess of 30 percent for left knee osteoarthritis with total replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.71a, Diagnostic Codes 5055. 7. The criteria for entitlement to a rating in excess of 30 percent for status-post right total knee arthroplasty have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.71a, Diagnostic Codes 5055. 8. The criteria for entitlement to a rating of a TDIU for the appeal period beginning on July 1, 2012 have 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 in the United States Navy from August 1974 to December 1977. The Veteran’s claims come before the Board of Veterans’ Appeals (Board) on appeal of a December 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in November 2008, the Veteran was granted service connection for a right and left knee osteoarthritis. The December 2008 rating decision assigned initial ratings effective December 9, 2003. The Veteran then filed a timely and valid Notice of Disagreement. The Veteran’s claim for earlier effective dates were subsequently denied by the Board. As a result, the Board has no jurisdiction over the Veteran’s lack of rating prior to December 9, 2003. The Veteran has continuously prosecuted a claim for increased ratings for his right and left knees. The record reflects that he underwent total knee replacements of the left knee on May 10, 2011, and of the right knee on May 3, 2019. Each knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055 effective each respective arthroplasty, in order to reflect the status of the Veteran’s knees status post-replacement. The Veteran’s right and left knees are rated by analogy under Diagnostic Codes 5010-5260 for the respective periods for each knee prior to his knee replacement surgeries; however, this diagnostic code does not apply to a knee status post-replacement. The claims on appeal has been recharacterized accordingly. To the extent that the Veteran claims entitlements to increased ratings for his knees, the Veteran’s temporary 100 percent ratings represent full grants of the sought, for there is no rating in excess of 100 percent. Meanwhile, each of the Veteran’s knees status post-replacement has been rated at 60 percent during a portion of the period on appeal, which is the schedular maximum rating for that disorder. As such, to the extent that the Veteran is already in receipt of maximum benefits for his knees, the Board concludes that those portions of the Veteran’s claims are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977); see also Sabonis v. Brown, 6 Vet. App. 426, 430) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). Nonetheless, because higher ratings are available (a) for the Veteran’s knees status pre-replacement, (b) for the left knee (status post-replacement) effective February 1, 2014, and (c) for the right knee (status post-replacement) for the period from July 1, 2020 to October 2, 2020, and the Veteran is presumed to seek the maximum available benefits, these issues remain on appeal and have been recharacterized as shown on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Finally, the Board also interprets a claim for a TDIU as part and parcel of the claims for increased ratings. 38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran’s claims have been remanded three times previously by the Board: on September 25, 2012, on May 1, 2018, and on August 27, 2020. In the most recent remand, the Agency of Original Jurisdiction was instructed to obtain certain outstanding private treatment records. The Board concludes that the Veteran has since been afforded substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was most recently issued a Supplemental Statement of the Case (SSOC) on October 14, 2020. The Board now accordingly reasserts jurisdiction. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. A separate 20 percent rating for the appeal period prior to May 10, 2011, but no higher, for residuals of dislocated semilunar cartilage of the left knee is granted. 2. A separate 20 percent rating appeal period prior to May 4, 2019, but no higher, for residuals of dislocated semilunar cartilage of the right knee is granted. 3. A separate 10 percent rating appeal period prior to May 4, 2019, but no higher, for slight lateral instability of the right knee is granted. 4. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis, for the appeal period prior to May 10, 2011, is denied. 5. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis, for the appeal period prior to May 4, 2019, is denied. The Veteran generally contends that higher ratings are warranted for his right and left knee disorders, to include his contentions that he is subject to falling. See, e.g.: Medical Treatment Record ( Nov. 13, 2017 ); Correspondence (rec’d Sept. 10, 2016 ). The Veteran’s knees prior to their respective replacements were rated as 10 percent disabling bilaterally by analogy under Diagnostic Codes 5010 and 5260, for traumatic arthritis and impairment upon flexion. This diagnostic code does not apply to the Veteran’s knees status post-replacement, to be discussed below. Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides that flexion of the leg limited to 15 degrees warrants a 30 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 45 degrees warrants a 10 percent rating; and flexion limited to 60 degrees warrants a zero percent (noncompensable) rating. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides that extension of the leg limited to 45 degrees warrants a 50 percent rating; extension limited to 30 degrees warrants a 40 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 5 degrees warrants a zero percent (noncompensable) rating. 38 C.F.R. § 4.71a. For comparison, normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. When the knee disability affects the meniscus, a 20 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 10 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Ratings can also be assigned for impairment of the tibia or fibula, removal of semilunar cartilage, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5262, 5263. As an initial matter, the Board notes that the evidence in this case does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis. As such, those diagnostic codes are not for application. The Veteran has generally complained of knee pain throughout his appeal, which he has in turn continuously prosecuted since the AOJ’s original receipt of his claim on December 9, 2003. The Board has done its own review of the Veteran’s claims file, and finds that Magnetic Resonance Imaging (MRI) scan evidence from June 2003 confirms tears of the bilateral posterior horns of the medial meniscuses, manifesting in “moderate” joint effusion in the left knee and “small” joint effusion in the right knee. See Medical Treatment Record ( June 19, 2003 ) (rec’d Dec. 12, 2003); see also STR ( Nov. 25, 1983 ) (referencing occasional right knee “clicks” and “giv[ing] out”). To the extent that the Veteran was previously only rated for limitation of flexion prior to knee replacement, the Board now resolves all doubt in the Veteran’s favor and concludes that his knees have also manifested in joint effusion from meniscus tears throughout the period on appeal. As such, entitlements to an additional 20 percent rating for each knee is warranted since December 9, 2003 but prior to replacements (left knee, prior to May 10, 2011; right knee, prior to May 4, 2019), but no higher and no earlier. 38 C.F.R. § 4.71a, Diagnostic Code 5258. This is the maximum schedular rating under this Diagnostic Code unless other applicable Diagnostic Codes might apply to the Veteran’s claim for his knees status pre-replacement. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). Furthermore, the Board specifically notes that the Veteran has urged the Board to consider not just range of motion measurements, but his contention “no consideration was given to my knees giving out on me and me falling down was taken into account.” See Correspondence (Nov. 13, 2017), supra. Separate recurrent subluxation and lateral instability is contemplated within the rating criteria under Diagnostic Code 5257, 38 C.F.R. § 4.71a. In this case, the Board acknowledges that in March 2003 (in other words, at a point predating the appellate period), the Veteran complained of knee pain with joint instability—with the right knee being worse than the left knee. See Medical Treatment Record ( Mar. 2, 2003 ). However, the Veteran’s clinical records are silent for any other complaint of joint instability until November 5, 2008 at the earliest. See Medical Treatment Record ( Nov. 5, 2008 ) (“There is slight anterior subluxation of the anterior horn of the medial meniscus.”). See also VA Exam (Oct. 7, 2019), at Question No. 2a (confirming the Veteran’s subjective account of joint instability), but cf. id at Questions Nos. 1b, 3e, and 6 et seq. (all contraindicating joint instability as observed by the examiner of record). Ultimately, the Board resolves reasonable doubt in the Veteran’s favor and grants a separate 10 percent rating for slight lateral instability of the right knee only for the appeal period prior to May 4, 2019. The Board has fully, carefully, and sympathetically reviewed the evidence of record, as recounted in pertinent part above. There is simply no evidence of record suggesting lateral instability of the left knee; as a result, any claim for a separate rating for the left knee under Diagnostic Code 5257 is denied. Furthermore, the rating criteria requires recurrent subluxation for a 10 percent rating. The November 5, 2008 record represents the second instance in the Veteran’s medical treatment records where lateral instability is mentioned. Prior to that, while the Board acknowledges one other allegation of same in March 2003. Finally, while the Board acknowledges the above evidence of “slight” anterior subluxation, there is simply no competent or credible evidence of record suggesting that the Veteran’s right knee instability ever increased in severity. As a result, the Board concludes that he is not entitled to any such higher rating under that diagnostic code. 38 C.F.R. §§ 4.3, 4.7. As delineated above, the Board concludes that separate compensable ratings under Diagnostic Codes 5258 (bilaterally) and 5257 (right knee only) are warranted. See 38 C.F.R. §§ 4.14, 4.71a; Esteban v. Brown, supra; Lyles v. Shulkin, supra. With respect to the Veteran’s previous rating for his right and left knees status pre-replacement (under Diagnostic Code 5260) and to the Veteran’s remaining claims for higher ratings prior to respective replacements, the Board concludes that there is simply no competent and credible evidence of record to enable such a finding. The Veteran most recently submitted to a VA examination on October 7, 2019. While the Board subsequently ordered that the claims be remanded, this was merely so that the AOJ could associate updated medical treatment records with the claims file. The Board notes in passing that these records were as pertaining to the Veteran’s knees status post-replacement; therefore, none of these updated medical records are pertinent to these portions of the Veteran’s claims. Additionally, the Veteran’s right knee (postdating the left) was replaced prior to this examination; therefore, the results from this examination are not pertinent to the claim for increased ratings pre-replacement either. Nonetheless, the Board concludes that the Veteran has been afforded substantial compliance with all previous remand directives. Stegall v. West, supra. In the Veteran’s case, there is simply no evidence of record to award increased ratings based upon more severely limited ranges of motion. The Board notes that the Veteran’s claim was first remanded in September 2012, based on credible allegations of worsening symptoms. See BVA (First) Remand (Sept. 25, 2012); see also VA Examination (July 5, 2008) (notating a range of motion from zero to 130 degrees bilaterally). By this time, the Veteran had already undergone total replacement of the left knee. Prior to replacement, aside from a notation suggesting a range of motion from zero to 120 degrees, see Physical Therapy Note ( Nov. 25, 2008 ), there is simply no competent or credible evidence suggesting a more severely limited range of motion at any time for either knee status pre-replacement. The Veteran was eventually afforded a subsequent VA examination on November 28, 2015. See VA Exam ( Nov. 28, 2015 ). While the results from this examination are associated with the claims file, and these results suggest a normal right knee pre-replacement range of motion that does not evince additional compensation under Diagnostic Codes 5260 or 5261, see id. at Questions Nos. 3 et seq., 5 et seq., 6 et seq., and 8 et seq., the claim was remanded in May 2018 to comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2017). See BVA (Second) Remand (May 1, 2018). The Veteran was only subsequently examined in October 2019; as mentioned above, these results are post-replacement bilaterally and are not applicable to the claim for increased ratings pre-replacement. The Board has fully considered all schedular bases for granting the Veteran’s claims for increased ratings for his knees status pre-replacement, including his credible lay statements that he is liable to fall due to instability and locking, and that merely considering range of motion unduly limited his disability compensation. As discussed above, the Veteran is now in receipt of other separate compensable ratings as the Board has deemed applicable. Aside from the above, the Board concludes that there are no other bases for increased ratings. To the extent that the Veteran and contends that his knee disorders pre-replacement were more severe than currently evaluated during any period on appeal, the Board observes that the Veteran, while competent to report symptoms, is not competent to report that his knee disabilities are of sufficient severity to warrant higher evaluations under VA’s rating schedule because such an opinion requires medical expertise (training in evaluating musculoskeletal impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board has considered whether a staged rating under Hart, supra is appropriate; however, the Board finds that the remainder of his symptomatology has been stable throughout the appeal. Therefore, assigning a staged rating is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As a result of the above, the Board concludes that the Veteran has been afforded substantial compliance with all previous remand directives. See Stegall, supra; see also D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required pursuant to Stegall). In the alternative, because the Veteran has now undergone bilateral knee replacements, it is impossible to remand for an updated examination; meanwhile, the Board regretfully concludes that a retrospective opinion would be purely speculative based upon the relative dearth of pre-replacement evidence. Any further remand for the bilateral knees status pre-replacement would only unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). To the extent that some previous examination results appear to be inconsistent with each other and/or with evidence within the claims file, the Board has resolved all above reasonable doubt in the Veteran’s favor. For all the foregoing reasons, the Board awards a 20 percent rating for right and left meniscus tears (effective December 9, 2003 until each respective knee replacement—left, May 10, 2011; right, May 9, 2019) and a 10 percent rating for right knee instability (effective November 5, 2008 until prior to replacement May 9, 2019), in addition to the Veteran’s 10 percent rating for right and left knee osteoarthritis. However, there is no basis for any higher or any other separate rating at any point during the period on appeal. As the preponderance of the evidence is against a higher or separate rating, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Entitlement to a rating in excess of 30 percent for left knee osteoarthritis with total replacement is denied. Entitlement to a rating in excess of 30 percent from July 1, 2020 to October 2, 2020 for status-post right total knee arthroplasty, is denied. The Veteran’s osteoarthritis of the right and left knees post-knee replacement are rated under Diagnostic Code 5055. Under this diagnostic code, a 100 percent rating is awarded for one year following implantation of prosthesis, a 60 percent rating is awarded in cases manifesting with chronic residuals consisting of severe painful motion or weakness in the affected extremity, and a 30 percent rating is the schedular minimum rating for the disorder. Intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension of the leg) or 5262 (impairment of the tibia and fibula). 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran does not appear to assert any particular argument in favor of ratings higher than what is already rated. The Veteran’s right and left knees were examined on October 7, 2019, see VA Exam (Oct. 7, 2019), supra—by this time, both of the Veteran’s knees had been replaced. Meanwhile, the Veteran’s claims were remanded in August 2020, so that other records could be associated with the claims file. See BVA (Third) Remand (Aug. 27, 2020). The Board accordingly once again reasserts jurisdiction, and concludes that the Veteran has been afforded substantial compliance with all previous remand directives. See Stegall, supra. The Veteran’s right and left knees appear to be limited to a range of motion not more limited from zero to 110 degrees, while fully considering additional limitations of range of motion as may be caused by pain in flare-ups and repetitions. See VA Exam (Oct. 7, 2019), at Question No. 3 et seq. The examiner did not conclude that the Veteran suffers from weakness in the lower extremities, see id. at Question No. 3c-e, and the evidence of record is similarly silent as to allegations of chronic residuals consisting of severe painful motion. See id. at Question No. 9. As was ordered in the Second Remand, this examination includes a Correia statement. See id. at Question No. 15; Correia v. McDonald, supra. The Board notes that the examiner indicated that the Veteran’s left knee only manifests in “intermediate degrees of residual weakness, pain, or limitation of motion.” See VA Exam ( Oct. 7, 2019 ), at Question No. 9, Page 14. The clinical evidence does not establish, and the Veteran has not alleged, severe painful motion or weakness in the affected extremity. A January 2020 VA treatment note indicates that the Veteran had knee swelling and reflects his reports of chronic knee swelling; the specific involved knee was not specified. A rating in excess of 30 percent for left knee osteoarthritis with total replacement is therefore not warranted. The Board has considered the subsequent evidence that was associated in response to the Third Remand. The evidence appears to be limited to the right knee—not the left knee. See Medical Treatment Records (rec’d Sept. 24, 2020 ); (rec’d Nov. 6, 2020 ). The Board accordingly concludes that the Veteran has been afforded substantial compliance with the remand directives as to the left knee post-replacement, see Stegall, supra. With regards to the status-post right total knee arthroplasty, the only period on appeal is from July 1, 2020 to October 2, 2020. The Veteran’s right knee is rated as 30 percent disabling under Diagnostic Code 5055 during this period of time. While the Veteran’s right knee is anticipated to being reduced to 30 percent effective December 1, 2021, this period is not on appeal at this time. See Rating Decision (Codesheet) (Nov. 10, 2020). The Veteran will receive a Rating Decision at that time, and he is free to file a Notice of Disagreement within one year of it. Ultimately, the Board notes that the Veteran was in receipt of temporary total disability ratings immediately prior to and immediately after this three-month period on appeal. The clinical evidence does not establish, and the Veteran has not alleged, severe painful motion or weakness in the affected extremity during this appeal period. Therefore, a rating in excess of 30 percent for status-post right total knee arthroplasty for the appeal period from July 1, 2020 to October 2, 2020 is not warranted. Based on the foregoing, the Board finds that a rating in excess of 30 percent for left knee osteoarthritis with total replacement and right knee status post-replacement is denied. In accordance with these findings, the Board concludes that an increased rating for left knee osteoarthritis with total replacement and right knee post-replacement is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5017(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 7. Entitlement to a rating of a TDIU for the appeal period beginning on July 1, 2012 is granted. The Veteran is already in receipt of numerous 100 percent ratings for his right and left knee disorders. A TDIU is considered a lesser benefit than the 100 percent rating, and the award of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or greater may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). The record does not reasonably raise any such matter at any time on appeal. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of meeting the percentage threshold for TDIU eligibility, disabilities of one or both lower extremities, including the bilateral factor; disabilities resulting from a common etiology or a single accident; or disabilities affecting a single body system are considered as one disability. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to their age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Id. at § 4.16(b). In this case, the Veteran has met the schedular criteria for a TDIU beginning on July 1, 2012. For this period of time only, the Veteran has met the schedular requirements for TDIU under 38 C.F.R. § 4.16. The determination of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that “applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.”). No medical opinion of record attesting to the Veteran's inability to maintain substantially gainful employment is required. The Board has reviewed the Veteran’s VA Form 21-8940, as received on January 30, 2013. The evidence of record suggests that the Veteran has one year of post-secondary schooling, but was trained as an electrician through on-the-job training. He claims that he has not worked since February 2010, and that his knee disabilities rendered him unemployable as of May 2011, because he is now unable to climb ladders safely without fear of his unstable knees. In short, the Board agrees with the Veteran. An October 2019 VA examiner found that the Veteran's right and left knee disorders would impact his ability to perform any type of occupational tasks to include tasks requiring prolonged periods of sitting, standing, walking, repetitive heavy lifting, running, kneeling, squatting, climbing and jumping aggravates the condition due to pain. A November 2015 VA examiner found that the Veteran’s right and left knee disorders would impact his ability to perform any type of occupational tasks as he would have difficulty with prolonged standing or long distances of walking. The Board notes that the Veteran would perform all such physical activities, with the possible exception of jumping, as an electrician. In a January 2013 statement, the Veteran reported that he had been shocked with electricity as an electrician, that he was now permanently grounded due to his knee replacement and “one shock at 460 volts would at the least blow my legs off, or [at] worst kill me.” Based on the foregoing, the Board resolves all reasonable doubt in the Veteran’s favor and concludes that the evidence is at least evenly balanced to suggest that the Veteran’s service-connected right and left knee disorders rendered him unable to obtain and maintain gainful employment for the appeal period beginning on July 1, 2012. The Veteran’s claim for a TDIU is granted for those periods of time only, subject to controlling laws and regulations. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.16 et seq.; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to a rating of a TDIU on an extraschedular basis for the appeal period prior to July 1, 2012 on appeal is remanded. As noted in the decision above, entitlement to a TDIU was raised in connection with the Veteran’s initial claim for service connection that was received on December 9, 2003. See Rice v. Shinseki, supra. Excluding all periods of 100 percent ratings, the Veteran does not meet the schedular criteria for a TDIU prior to July 1, 2012. Where the percentage requirements for a TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of their service-connected disability or disabilities. 38 C.F.R. § 4.16(b). In cases where entitlement to a TDIU is warranted on an extraschedular basis, the claim must be submitted to the Director of Compensation Service for initial adjudication. Id. Given that the evidence of records suggests that the Veteran was ultimately rendered unable to work due to his service-connected disabilities, the Board concludes that any remaining claim of entitlement to a TDIU should be submitted to the Director, Compensation Service, for a determination as to whether a TDIU should be awarded at any other point prior to July 1, 2012 on an extraschedular basis. The matter is REMANDED for the following action: 1. The AOJ must refer to the Director of Compensation Service for a determination as to whether the Veteran is entitled to an award of a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b) at any time prior to July 1, 2012. 2. Thereafter, and after any further development deemed necessary, entitlement to a TDIU on an extraschedular basis prior to July 1, 2012, should be readjudicated. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.