Citation Nr: 21003963 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 13-18 169 DATE: January 25, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for right knee degenerative arthritis, based on limitation of flexion, is denied. Entitlement to an initial compensable rating for right knee degenerative arthritis, based on limitation of extension, from October 17, 2018, is denied. Entitlement to a 10 percent disability rating for right knee degenerative arthritis, based on instability, from January 27, 2015, is granted. Entitlement to an initial disability rating in excess of 10 percent for left knee degenerative arthritis, based on limitation of motion, prior to April 20, 2015, is denied. Entitlement to an initial disability rating in excess of 10 percent for left knee degenerative arthritis, based on instability, prior to April 20, 2015, is denied. Entitlement to an initial disability rating in excess of 30 percent for left knee degenerative arthritis, status-post total knee replacement, from June 1, 2016, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 24, 2014, is denied. FINDINGS OF FACT 1. For all periods on appeal, the Veteran’s right knee flexion has not been limited beyond 110 degrees, with pain on movement. 2. For all periods on appeal, the Veteran’s tight knee extension has not been limited beyond 5 degrees, with pain on movement. 3. From January 27, 2015, slight instability has been shown in the Veteran’s right knee. 4. Prior to April 20, 2015, the Veteran’s left knee degenerative arthritis resulted in no more than 10 degrees of lost extension and 130 degrees of lost flexion. 5. Prior to April 20, 2015, the Veteran’s left knee degenerative arthritis resulted in no more than slight instability and subluxation. 6. From June 1, 2016, the Veteran’s left knee has resulted in intermediate levels of residual pain and weakness with no evidence of ankylosis or other fixation of the joint, impairment of the tibia or fibula, and no limitation of extension. 7. Prior to February 28, 2014, the Veteran was gainfully employed. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee degenerative arthritis, based on limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003, 5260. 2. The criteria for a compensable rating for right knee degenerative arthritis, based on limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5003, 5261. 3. The criteria for a 10 percent rating for right knee degenerative arthritis, based on instability, have been met from January 27, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 4. The criteria for a rating in excess of 10 percent for left knee degenerative arthritis, based on limitation of motion (flexion and extension), have not been met prior to April 20, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5003, 5260, 5261. 5. The criteria for a rating in excess of 10 percent for left knee degenerative arthritis, based on instability, have not been met prior to April 20, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 6. The criteria for a rating in excess of 30 percent for a left knee, status-post total knee replacement, from June 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5055, 5256, 5261, 5262. 7. 7. The criteria for a grant of TDIU have not been met prior to February 24, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.19, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1969 to February 1972, August 1985 to August 1986, November 1987 to April 1988, October 1990 to April 1991, January 1995 to July 1995, November 2003 to September 2004, and November 2004 to March 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, during the pendency of the appeal, the RO issued a rating decision in August 2016, which granted a temporary total evaluation for a total left knee replacement from April 20, 2015, to June 1, 2016; and assigned a 30 percent rating thereafter to reflect the status-post total knee replacement of that disability. This essentially discontinued the two prior separate 10 percent ratings for the left knee, effective April 20, 2015. As such, the Board has characterized the increased rating claim for the left knee to reflect the two separate rating periods before and after the temporary total rating. In its prior remand, the Board inferred a claim of TDIU as part and parcel of the increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a September 2019 rating decision, the RO granted TDIU effective February 24, 2014. The Veteran’s representative continues to argue in favor of TDIU prior to that date. The Board has recharacterized the TDIU claim to reflect that grant. Also in the September 2019 rating decision, the RO granted a separate, noncompensable rating for the right knee disability, based on limitation of extension, effective October 17, 2018. The Board has included this rating as part of the increased rating claim for the right knee. The Veteran testified before the undersigned Veterans’ Law Judge at a hearing held in June 2017. A transcript of that hearing is of record. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran’s bilateral knee disabilities, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. When rating disabilities of the knee based on limitation of motion, a separate rating may be assigned for knee disabilities based on limitation of flexion as well as limitation of extension of the knee. Likewise, separate ratings may be assigned based on limitation of motion, as well as instability or subluxation, if found. See VAOPGCPREC 23-97 (Multiple Ratings for Knee Disability). Under the applicable rating criteria for limitation of flexion, flexion limited to 45 degrees is assigned a 10 percent rating. Rating limited to 30 degrees is assigned a 20 percent rating. Finally, flexion limited to 15 degrees or less is assigned a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension to 5 degrees or less is assigned a noncompensable rating. Extension limited to 10 degrees is assigned a 10 percent rating. Extension limited to 15 degrees is assigned a 20 percent rating. Extension limited to 20 degrees is assigned a 30 percent rating. Extension limited to 30 degrees is assigned a 40 percent rating. Finally, extension limited to 45 degrees or greater is assigned a 50 percent rating. 38 C.F.R. § 4.71a , DC 5261. When slight impairment of the knee due to recurrent subluxation or lateral instability is found, a 10 percent rating is assigned. Moderate recurrent subluxation or lateral instability is granted a 20 percent rating. Severe recurrent subluxation or lateral instability is assigned a 30 percent rating. 38 C.F.R. § 4.71a , DC 5257. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a , DC 5003. Following a prosthetic replacement of the knee joint, a 100 percent total rating is granted for the one year following the implantation. A minimum rating of 30 percent is to assigned thereafter, with a 60 percent rating granted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. For intermediate degrees (between 30 and 60 percent) of residual weakness, pain or limitation of motion, the knee is to be rated by analogy to diagnostic codes 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of the tibia or fibula). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 1. Entitlement to an initial disability rating in excess of 10 percent for right knee degenerative arthritis, based on limitation of flexion 2. Entitlement to an initial compensable rating for right knee degenerative arthritis, based on limitation of extension, from October 17, 2018 The Veteran’s right knee is rated as 10 percent disabling based on limitation of flexion. He has been granted a separate noncompensable rating based on limitation of extension effective October 17, 2018. He seeks increased ratings for both. The Board finds that the claims should be denied. However, the Board finds that, effective January 27, 2015, a separate 10 percent rating should also be applied based on the presence of instability in the right knee. The Veteran’s knees were initially evaluated in November 2011. At that time he reported pain in both pain, noises in the joint, and stiffness. Although he used to walk on a treadmill, he now limited walking to approximately 200 yards, and had stopped running. He had been advised to have a knee replacement, which he wished to defer at that time. Flare-ups were reported, depending on the activity. The Veteran stated that prolonged walking could cause a day of increased knee pain, resolving with rest and limitation of activity, although he did not report any additional loss of motion during such periods. Flexion was limited to 130 degrees with pain at the terminal point. Extension was not limited and he showed no evidence of pain on extension. Repetitive use testing was accomplished with no additional functional loss. Functional loss was attributed to excess fatigability, and pain on movement. Pain was noted on palpation. Muscle strength was full and complete. Anterior, posterior, and medial-lateral instability testing was all normal. Patellar subluxation was not found. He did not use an assistive device to ambulate. Functionally, the examiner stated that his knees limited mobility, particularly resulting in shorter walking distances. He was slower going up and down steps and could not engage in any high-impact physical activity. Private treatment records from October 2012 show pain in the knees with imaging being conducted, confirming medial joint space narrowing and degenerative changes of the bilateral knees. However, no range of motion or other findings were reported which the Board could consider in rating this disability. Pain was similarly noted in March 2015. Private treatment records dated January 4, 2013, document that the Veteran fell while at work, impacting the front portion of both knees. The examiner noted that the Veteran historically had more significant symptoms in the left knee, but at the time the right knee experienced worse pain. Pain was described as sharp and moderate in the anterior of both knees. He had a slight scrape on the left knee front, but otherwise no skin issues. Both knees were without deformity. There was no effusion to either knee and no laxity with varus or valgus at 0-30 degrees. Anterior, Lachman’s and McMurray’s tests were negative. Some tenderness to palpation over both patella was found. X-rays were negative for fracture or dislocation, although degenerative changes were observed throughout. He was advised to use a cane and avoid work for one week. No range of motion or other findings were reported. Private orthopedic notes dated January 27, 2015, indicate a history of bilateral knee pain. Although he had considered total knee replacement, he indicated that his symptoms had improved and that he had decided against the surgery. He reported bilateral instability and buckling in both knees, to include a fall down the stairs approximately 1.5 years earlier (he reported that he dislocated both patella, although the Board notes that the contemporary records from that fall found no such pathology). He also reported falling while hiking in February 2014. He also reported an incident of his right knee locking while on the gas pedal while driving, causing him to drive into the median. He stated that his pain was 5/10 most of the time, elevating to occasional sharp pains 8/10 in severity (more often in the left knee). He treated his pain with over-the-counter medication. He now requested to start the process for bilateral knee replacements, starting with the left knee. He did not use assistive devices. On examination, flexion was limited to 120 degrees with full extension. No extensor lag was observed. Some minimal varus/valgus laxity was noted. He was positive for crepitus. Strength was full and complete and he had a normal gait. The Veteran was subsequently evaluated in July 2015. At that time he reported flare-ups as stiffness and pain, the pain being chronic when worse. He stated that when flare-ups occurred, he had to rest to limit the pain. Right knee flexion was limited to 130 degrees. He did not have limitation of extension. Pain was noted on the examination, but did not result in functional loss. There was evidence of pain with weight bearing and crepitus. No additional functional loss was reported on repetitive use testing, although any additional loss of function on repetitive use over time could not be given without resort to speculation. The examination was consistent with the Veteran’s report of flare-ups. Additional factors affecting his right knee included swelling, disturbance of locomotion, and interference with sitting. Strength showed active movement against some resistance on flexion and was normal on extension. There was no muscle atrophy or ankylosis. Joint stability testing was normal. Frequent joint “locking” was reported. Functionally, his knee was noted to be worsening. The Veteran was again afforded a VA examination in October 2018. He reported worsening bilateral pain over the prior 18 months with stiffness and sharp pain in the left knee (worse with squatting and kneeling) and intermittent sharpness and stiffness in the right knee (worse with driving). He treated his symptoms with over-the-counter medications. No flare-ups were reported in the right knee. Flexion was limited to 110 degrees. Extension was limited to 5 degrees. No evidence of pain was found on examination. He showed some evidence of crepitus. No additional loss was found following repetitive use testing. The examination was neither medically consistent nor inconsistent with the Veteran’s reports of functional loss with repetitive use over time. The same was reported during flare-ups. No additional factors were found to limit motion. Flexion showed active movement against some resistance and extension showed normal strength. No muscle atrophy or ankylosis was found. Slight lateral instability was noted, as was a history of recurrent swelling of the knees. Performance joint stability testing was normal bilaterally. Right meniscal tear resulted in frequent episodes of joint locking (he was status-post meniscectomy, which occurred in 1983, during a period when he was no on active duty). He regularly used a cane. Functionally, his knee impacted is abilities with prolonged weight bearing and stairs. Finally, the Veteran was afforded a VA examination in May 2019. At that time, he reported flare-ups in the right knee described as pain and stiffness to the joint while walking, prolonged standing and engaging in weight bearing activity. Functionally, he reported flare-ups to limit walking and running greater than 200 feet, prolonged standing for longer than 30 minutes, or any weight bearing activity greater than his own body weight. Flexion was limited to 130 degrees and extension was full and complete. He showed pain on flexion only, and it did not cause additional functional loss. Pain was found on passive movement testing, but not on non-weight bearing testing. There was no evidence of crepitus or localized tenderness or pain on palpation. Repetitive use testing did not result in any additional functional loss, and the examination was medically consistent with the Veteran’s reports of functional loss over time. The examiner did not find any additional loss of range of motion with use over time. Similar findings were reported for periods of flare. Muscle strength was complete and full on all planes of movement and he had not muscle atrophy. There was no sign of ankylosis or malunion/nonunion of the tibia or fibula. Joint stability testing was completely normal on all planes. No meniscal condition was found. He used a cane regularly, but nor constantly. The examiner stated that functionally, knee pain and stiffness inhibit prolonged standing and walking, and prohibited running of any length, as well as weight bearing activities other than the Veteran’s own body weight. His knee conditions would inhibit gainful employment in occupations that are demanding or require constant standing/moving. Based on this evidence the Board finds that the claims should be denied. For the Veteran to receive a compensable rating based on either limitation of extension or limitation of flexion, he would need to show flexion limited to 45 degrees or less, or extension limited to 10 degrees or less. This would provide for a minimum 10 percent rating for either plane of motion. However, at most, the Veteran’s flexion was limited to 110 degrees and extension limited to 5 degrees – both non-compensable levels of limitation of motion. When motion is limited, and pain is present, but has not risen to a compensable level of severity, a single 10 percent rating is to be assigned based on painful motion. This single percentage is not to be combined between flexion and extension, but rather is to be granted to compensate for both. As of this time, the Veteran has a 10 percent rating for limitation of flexion and a noncompensable rating based on limitation of extension. This essentially reflects the single 10 percent rating allowed for this disability based on non-compensable loss of functional motion. As such, increased ratings are not warranted and these claims are denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. However, the Board does recognize that when loss of range of motion and instability are present, an additional rating based on instability may be assigned for the knee. Indeed, this is precisely how the Veteran’s left knee has been rated from the initial date of service connection. In this matter, the January 27, 2015 private orthopedic note first documents instability in the Veteran’s right knee. From that date forward, all other records also document some type of instability or locking of the knee. While this instability is certainly present, it has not completely prevented use of the knee. Indeed, the Veteran can stand or walk for up to 30 minutes. At most he regularly uses a cane, but has not required consistent use of it. Therefore, the Board concludes that the Veteran’s instability of the right knee has been “slight” in nature, and an additional 10 percent rating is granted effective January 27, 2015, the first date where evidence of instability is found in the record. 3. Entitlement to an initial disability rating in excess of 10 percent for left knee degenerative arthritis, based on limitation of motion, prior to April 20, 2015 4. Entitlement to an initial disability rating in excess of 10 percent for left knee degenerative arthritis, based on instability, prior to April 20, 2015 The Veteran’s knees are rated as 10 percent disabling based on limitation of motion (flexion and/or extension) prior to April 20, 2015, and 10 percent disabling due to instability, also prior to April 20, 2015. The Board finds that the claims should be denied. The Veteran’s knees were initially evaluated in November 2011. At that time he reported pain in both pain, noises in the joint, and stiffness. Although he used to walk on a treadmill, he now limited walking to approximately 200 yards, and had stopped running. He had been advised to have a knee replacement, which he wished to defer at that time. Flare-ups were reported, depending on the activity. The Veteran stated that prolonged walking could cause a day of increased knee pain, resolving with rest and limitation of activity, although he did not report any additional loss of motion during such periods. Flexion was to 130 degrees with pain at the terminal point. Extension was limited to 10 degrees with evidence of pain at 10 degrees. Repetitive use testing was accomplished with no additional functional loss. Functional loss was attributed to excess fatigability, disturbance of locomotion, interference with sitting, standing and weightbearing, and pain on movement. Pain was noted on palpation. Muscle strength was full and complete. Anterior, posterior, and medial-lateral instability testing was all normal. Slight patellar subluxation was observed. A meniscal tear was noted with frequent episodes of joint pain. A meniscectomy had been accomplished in 1983, with no complications or residuals. He did not use an assistive device to ambulate. Functionally, the examiner stated that his knees limited mobility, particularly resulting in shorter walking distances. He was slower going up and down steps and could not engage in any high-impact physical activity. Private treatment records from October 2012 show pain in the knees with imaging being conducted, confirming medial joint space narrowing and degenerative changes of the bilateral knees. However, no range of motion or other findings were reported which the Board could consider in rating this disability. Private treatment records dated January 4, 2013, document that the Veteran fell while at work, impacting the front portion of both knees. The examiner noted that the Veteran historically had more significant symptoms in the left knee, but at the time the right knee experienced worse pain. Pain was described as sharp and moderate in the anterior of both knees. He had a slight scrape on the left knee front, but otherwise no skin issues. Both knees were without deformity. There was no effusion to either knee and no laxity with varus or valgus at 0-30 degrees. Anterior, Lachman’s and McMurray’s tests were negative. Some tenderness to palpation over both patella was found. X-rays were negative for fracture or dislocation, although degenerative changes were observed throughout. He was advised to use a cane and avoid work for one week. No range of motion or other findings were reported. Private orthopedic notes dated January 27, 2015, indicate a history of bilateral knee pain. Although he had considered total knee replacement, he indicated that his symptoms had improved and that he had decided against the surgery. He reported bilateral instability and buckling in both knees, to include a fall down the stairs approximately 1.5 years earlier (he reported that he dislocated both patella, although the Board notes that the contemporary records from that fall found no such pathology). He also reported falling while hiking in February 2014. He also reported an incident of his right knee locking while on the gas pedal while driving, causing him to drive into the median. He stated that his pain was 5/10 most of the time, elevating to occasional sharp pains 8/10 in severity (more often in the left knee). He treated his pain with over-the-counter medication. He now requested to start the process for bilateral knee replacements, starting with the left knee. He did not use assistive devices. On examination, he had a mild valgus deformity with minimal varus/valgus laxity noted. Flexion was limited to 130 degrees. Extension was limited to 10 degrees. Strength was 5/5. He was positive for crepitus. A total knee replacement of the left knee was suggested. A December 2015 private treatment record indicated that the Veteran’s arthritis resulted in severe pain and instability prior to his total knee replacement in April 2015, but did not discuss any degree of loss of motion or instability. The Board finds that prior to April 30, 2015, the Veteran’s left knee has shown no greater than 130 degrees of limited flexion, and 10 degrees of limited extension, both with pain. These findings consider the Veteran’s actual physical examination findings, as well as his own reports of severity, to include periods of flare. 10 degrees of limited extension with pain, is compensated by a 10 percent disability rating. There is no evidence to suggest the Veteran’s extension was limited beyond 10 degrees. Neither is there any evidence to suggest his flexion was limited to a compensable level, which would require a showing of limitation to 45 degrees or less. Finally, because the loss of extension is compensable, a single minimum 10 percent rating is not for application under DC 5003. As such, the Board finds that the Veteran’s claims for increased rating based on limitation of motion should be denied. The Veteran has also been afforded a 10 percent rating based on the presence of instability or subluxation. The record does indicate some degree of instability, as well as patellar subluxation. Despite the presence of such instability, the Veteran was able to stand and walk. As late as January 2015 he denied requiring the use of an assistive device to walk. While he reported one or two falls throughout the period on appeal, he did not experience regular falls or failures of the joint. Therefore, considering the complete record, the Board finds that the Veteran’s instability and subluxation were slight in nature, and a rating in excess of 10 percent was not warranted prior to April 20, 2015. In sum, the Board finds that the claims for ratings of the left knee in excess of 10 percent, prior to April 20, 2015, based on limitation of motion and instability, should be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 5. Entitlement to an initial disability rating in excess of 30 percent for left knee degenerative arthritis, status-post total knee replacement, from June 1, 2016 From June 1, 2016, the Veteran’s left knee has been rated as 30 percent disabling based on his status-post total knee replacement. He seeks a higher rating. The Board finds that the claim should be denied. As noted above, the Veteran underwent a total left knee replacement on April 20, 2015. He was subsequently evaluated in a VA examination in July 2015. At that time he reported flare-ups as stiffness and pain, the pain being chronic when worse. He stated that when flare-ups occurred, he had to rest to limit the pain. Range of motion showed flexion to 130 degrees with extension unlimited. Pain was noted on the examination but did not cause functional loss. There was localized tenderness on palpation of the joint. There was no evidence of crepitus. He was noted to be status-post knee replacement. No additional functional loss was reported on repetitive use testing, although any additional loss of function on repetitive use over time could not be given without resort to speculation. Additional factors affecting the disability included deformity, instability of station, disturbance of locomotion, interference with standing. Strength showed active movement against some resistance. He had no muscle atrophy or ankylosis. Joint stability testing was normal. An intermediae degree of residual weakness, pain or limitation of motion was noted post-knee replacement. The knee was found to be functionally much improved since the time of the knee replacement. It is noted that this examination was conducted during the Veteran’s convalescence period following his surgery, indeed, it occurred a mere eight weeks following surgery. As such, it does not speak to the actual severity during the period on appeal, although the Board will take notice of its findings. He was again afforded a VA examination in October 2018. He reported worsening bilateral pain over the prior 18 months with stiffness and sharp pain in the left knee (worse with squatting and kneeling) and intermittent sharpness and stiffness in the right knee (worse with driving). He treated his symptoms with over-the-counter medications. Flare-ups were reported only in the left knee, described as sharp and intense burning pain, occurring daily and lasting 1-3 hours, although not described as limiting range of motion. Flexion was limited to 120 degrees. Extension was complete and full. There was no evidence of pain on examination, to include evidence of pain with weight bearing. There was no evidence of crepitus. No additional loss was found following repetitive use testing. The examination was neither medically consistent nor inconsistent with the Veteran’s reports of functional loss with repetitive use over time. The same was reported during flare-ups. No additional factors were found to limit motion. Flexion showed active movement against some resistance and extension showed normal strength. No muscle atrophy or ankylosis was found. There was no malunion or nonunion of the tibia or fibula. Joint stability testing showed moderate recurrent subluxation and lateral instability. He had a history of swelling of the knees. Performance joint stability testing was normal bilaterally. He regularly used a cane. Functionally, his knee impacted is abilities with prolonged weight bearing and stairs. Finally, the Veteran was afforded a VA examination in May 2019. Functionally, he reported flare-ups to limit walking and running greater than 200 feet, prolonged standing for longer than 30 minutes, or any weight bearing activity greater than his own body weight. However, flexion was limited to 125 degrees and extension was full and complete. He showed pain on flexion only, and it did not cause additional functional loss. Pain was found on passive motion testing, but no evidence of pain was found during non-weight bearing testing. There was no evidence of crepitus or localized tenderness or pain on palpation. Repetitive use testing did not result in any additional functional loss, and the examination was medically consistent with the Veteran’s reports of functional loss over time. The examiner did not find any additional loss of range of motion with use over time. Similar findings were reported for periods of flare. Muscle strength was complete and full on all planes of movement and he had not muscle atrophy. There was no sign of ankylosis or malunion/nonunion of the tibia or fibula. Joint stability testing was completely normal on all planes. The Veteran was found to have an intermediate degree of residual weakness, pain or limitation of motion following his total knee replacement surgery. He used a cane regularly, but nor constantly. The examiner stated that functionally, knee pain and stiffness inhibit prolonged standing and walking, and prohibited running of any length, as well as weight bearing activities other than the Veteran’s own body weight. His knee conditions would inhibit gainful employment in occupations that are demanding or require constant standing/moving. In light of the above, the Board finds that the criteria for a rating in excess of 30 percent have not been met. As noted above, prosthetic knee replacements are granted a minimum 30 percent rating, with a maximum rating of 60 percent for chronic residuals which are specifically described as severe painful motion or weakness in the affected extremity. Any intermediate degree of residual weakness or pain is to be specifically rated based on limitation of extension, presence of ankylosis, or impairment of the tibia or fibula. First, the Board finds that, while pain and weakness are present, they are not “severe” in nature. Indeed, the Veteran is able to walk and stand for up to 30 minutes at a time, even during periods of flare. He can bear weight on the joint. Although still limited in terms of flexion, his range of motion has improved from prior to the knee replacement surgery. Most recently, a medical specialist opined that his residual weakness and pain is “intermediate” in nature. Taken as a whole, the Board finds that this does not constitute “severe” painful motion or weakness, as is anticipated by the Diagnostic Code, and therefore a maximum 60 percent rating is not for application. Turning to whether a higher rating is warranted based on “intermediate” levels of residual symptoms, the Board similarly finds in the negative. There is no evidence of ankylosis or impairment of either the tibia or fibula, either in actuality or functionally. Despite some stiffness, the Veteran can bend the joint, and there is no evidence of malunion or nonunion of the tibia or fibula. Therefore, consideration of a higher rating is not warranted under DCs 5256 or 5262. The remaining available DC for rating intermediate levels of post-total knee residuals is DC 5261 which compensates based on limitation of extension. However, since the time of the Veteran’s knee replacement, and the one-year convalescent period expired, his extension has found to be generally full and complete without any limitations of motion, even considering his pain and weakness. For him to be assigned a greater rating based on limitation of extension, he would need to show limitation of extension to 30 degrees. Such pathology is simply not supported by the record. The Board is not unsympathetic to the Veteran’s claim for an increased rating. He underwent a total knee replacement surgery, and does have some intermediate level of post-surgical residuals, to include pain and weakness. However, these residuals do not rise to a level that would provide for a rating in excess of the minimum 30 percent already assigned. As such, the Board must deny the claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. TDIU A TDIU is assigned when a veteran’s service-connected disability or disabilities are of such severity that the veteran cannot secure or follow a substantially gainful occupation solely because of that disability or disabilities. 38 C.F.R. § 4.16. 6. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 24, 2014 In its prior remand in this appeal, the Board concluded that a claim for TDIU was part and parcel of the increased rating claims pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). In December 2018, following the Board remand, the Veteran submitted a VA Form 21-8930 (Veterans Application for Increased Compensation Based on Unemployability). In that form he stated that he was gainfully employed, full time, from February 28, 2009 through February 28, 2014. Based on this signed and sworn assertion from the Veteran, the RO issued a rating decision in September 2019 which, among other things, granted TDIU effective February 24, 2014 (it appears from that rating decision that the RO misinterpreted the Veteran’s final day of employment as being February 23, 2014, instead of February 28, 2014 – this resulted in a favorable grant to the Veteran and the Board will not disturb it). Despite being granted TDIU from the first date he officially became unemployed (indeed, his official date of TDIU pre-dates his final date of employment by four days), the Veteran’s representative continues to argue in favor of entitlement to TDIU prior to the date of February 24, 2014. The Board finds this claim must be denied. By the Veteran’s own signed and sworn assertions, he was employed prior to February 28, 2014. As the Veteran was gainfully employed prior to that date, he does not meet the primary criteria for entitlement to TDIU- namely that he be unemployable. As such, the Board will deny entitlement to TDIU prior to February 24, 2014. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel