Citation Nr: 21004095 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-38 014 DATE: January 26, 2021 ORDER 1. Entitlement to an initial disability rating in excess of 10 percent for left knee arthritis with limitation of extension prior to July 2, 2018 and an increased disability rating in excess of 60 percent for status post left knee total replacement from September 1, 2019 is denied. 2. Entitlement to a separate 20 percent rating, but no higher, for left knee instability prior to July 2, 2018, is granted. 3. Entitlement to referral for consideration of a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis is denied. FINDINGS OF FACT 1. Prior to July 2, 2018, the Veteran’s left knee arthritis with limitation of extension was manifested by limitation of extension of the leg to no worse than 10 degrees. 2. Resolving reasonable doubt in favor of the Veteran, left knee arthritis was also manifested by moderate instability prior to July 2, 2018. The left knee was not manifested by severe instability prior to July 2, 2018. 3. From September 1, 2019, the Veteran’s status post left knee total replacement has been manifested by no worse than chronic residuals consisting of severe painful motion or weakness in the affected extremity, and the Veteran is already in receipt of the highest possible disability rating for his left knee disability. 4. For the entire period on appeal, the Veteran has not been precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for left knee arthritis with limitation of extension prior to July 2, 2018 and an increased disability rating in excess of 60 percent for status post left knee total replacement from September 1, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5055, 5162, 5261 (2019). 2. The criteria for a separate 20 percent disability rating, but no higher, for slight left knee instability have been met prior to July 2, 2018. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5257 (2019). 3. The criteria for a TDIU rating have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1955 to April 1957. The Board notes that the Veteran is in receipt of a temporary total disability rating (100 percent) based upon convalescence following left knee surgery, including during the appeal period from July 2, 2018 through August 31, 2019. During this staged rating period, the temporary total rating constitutes a complete grant and, thus, that period of time when the Veteran was in receipt of a temporary total rating is not on appeal. As such, the Board has limited its consideration of the Veteran’s left knee increased rating claim to the relevant staged periods prior to July 2, 2018 and from September 1, 2019. 1. – 2. Entitlement to an initial disability rating in excess of 10 percent for left knee arthritis with limitation of extension prior to July 2, 2018 and an increased disability rating in excess of 60 percent for status post left knee total replacement from September 1, 2019 and a separate rating for instability. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The Veteran’s left knee arthritis with limitation of extension is currently rated as 10 percent disabling prior to July 2, 2018 pursuant to DC 5261, while his status post left knee total replacement is currently rated as 60 percent disabling from September 1, 2019 pursuant to DC 5055. See 38 C.F.R. § 4.71a, DCs 5055, 5261 (2019). Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under DC 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable rating. Limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating. Limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. Under DC 5261, limitation of extension of a leg to 5 degrees warrants a noncompensable disability rating; limitation of extension of a leg to 10 degrees warrants a 10 percent disability rating; limitation of extension of a leg to 15 degrees warrants a 20 percent disability rating; limitation of extension of a leg to 20 degrees warrants a 30 percent disability rating; limitation of extension of a leg to 30 degrees warrants a 40 percent disability rating; and limitation of extension to 45 degrees warrants a maximum schedular 50 percent disability rating. Under DC 5257, a 10 percent rating is warranted for slight knee impairment, that is, recurrent subluxation or lateral instability. A 20 percent rating is assigned for a moderate degree of impairment, and a maximum rating of 30 percent is assigned for severe impairment. Under DC 5258, a 20 percent rating is warranted for cartilage, semilunar dislocated, with frequent episodes of locking, pain, and effusion into the joint. The 20 percent rating is the only rating available under DC 5258. Under DC 5055, a 100 percent disability rating is warranted for one year following implantation of a knee prosthesis. Thereafter, a minimum 30 percent disability rating is warranted. With intermediate degrees of residual weakness, pain, or limitation of motion, the disability is to be rated by analogy to DCs 5256, 5261, or 5262 regarding ankylosis of the knee, limitation of motion of the leg, or impairment of the tibia and fibula, respectively. Where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a maximum schedular 60 percent disability rating is warranted. Following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to an initial disability rating in excess of 10 percent for left knee arthritis with limitation of extension prior to July 2, 2018 and an increased disability rating in excess of 60 percent for status post left knee total replacement from September 1, 2019. However, as also discussed below, after resolving any reasonable doubt in favor of the Veteran, the Board finds that a separate 10 percent disability rating, but no higher, is warranted for the Veteran’s left knee arthritis with slight instability prior to July 2, 2018.   A. Prior to July 2, 2018 The Veteran’s attorney has asserted in a November 2020 brief that the Veteran is entitled to a disability rating in excess of 10 percent for his left knee disability prior to July 2, 2018. He asserts that the current 10 percent disability rating does not compensate the Veteran for the full extent of the functional loss caused by his left knee disability, and noted the potential for separate disability ratings under the various diagnostic codes related to the knee. In support of his argument for an increased disability rating, the Veteran’s attorney referenced a February 2011 knee examination report and findings therein; however, to the extent that the attorney relies on the symptomatology described during the February 2011 VA examination report in support of the claim for an increased rating, the Board finds this evidence is of significantly lessened probative value, as it is more than five years prior to the award of service connection for the left knee disability. Nevertheless, the Board will proceed to consider the evidence of record, and as discussed below, the Board has partially granted the Veteran’s claim based upon consideration of an applicable alternate diagnostic code, as urged by his attorney within the November 2020 brief. Upon VA knee examination in November 2016, the VA examiner diagnosed bilateral knee degenerative arthritis. The Veteran reported chronic knee pain ever since an in-service knee injury while playing basketball, with prior left knee orthoscopic surgery in 1998 and a soon-to-be scheduled left knee replacement surgery. He reported daily flare ups of increased left knee pain, left knee buckling and giving way, and functional loss or functional impairment including an inability to walk during flare ups, which required him to sit and elevate the knee. Upon physical examination, initial range of motion findings included left knee flexion to 115 degrees and extension to 10 degrees, each with noted pain, and with range of motion contributing to functional loss, including weakness and instability of station. There was evidence of pain with weight bearing, objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue (including mild tenderness to palpation of the medial area of the patella joint line), and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. The VA examiner noted that the physical examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repeated use over a period of time or during flare-ups, and he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or during a flare up, as he did not examine the Veteran’s knees after repeated use over a period of time or during a flare up. The examiner identified additional contributing factors of disability as less movement than normal due to ankylosis, adhesions, etc., weakened movement due to muscle or peripheral nerve injury, etc., deformity, instability of station, and disturbance of locomotion. Muscle strength was rated 3/5 in flexion and extension, without atrophy or ankylosis. There was no history of left knee recurrent subluxation, a slight history of left knee lateral instability, and no history of recurrent effusion. Joint stability testing was indicated, but the Veteran was not able to perform due to pain and weakness. The Veteran denied ever having recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner noted a left knee meniscal dislocation with frequent episodes of joint pain following left knee orthoscopic surgery in 1998, with residual signs or symptoms of pain, weakness, and swelling. In addition, the Veteran had a slow antalgic gait, and he reported occasional use of a wheelchair, regular use of a brace, regular use of a cane, and constant use of a walker for locomotion. Finally, the Veteran described the functional impact of his left knee disability and noted the he used to work in real estate and banking, but the last time he worked was in real estate in 2004, but that because of severe, increased pain in his knees and back, he could not do the physical activity of the job, including going up and down stairs and long periods of sitting and standing, because his knees would get too painful and swollen. VA treatment records from January 2017 document that the Veteran had experienced one month of relief following a left knee cortisone shot. He displayed left knee varus with valgus laxity, and moderate effusion. His left knee, with advanced degenerative joint disease (DJD), was given an injection of Synvisc, and it was noted that he would probably need a total knee replacement. In March 2017, he was noted to have boney DJD changes of the left knee, with tenderness and pain with full range of motion and normal gait. Upon follow up in April 2017, the Veteran reported that his knee pain was getting worse, without relief from the Synvisc injection, and he requested to proceed with total knee replacement surgery. He left knee was again noted to have varus with valgus laxity, without effusion, and pain with range of motion. In May 2017, the Veteran reported that his knee surgery had been postponed until late July and he was preparing for surgery as to his personal needs and business being in order prior to surgery. Based upon the evidence prior to July 2, 2018 discussed above, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to an initial disability rating in excess of 10 percent for left knee arthritis with limitation of extension prior to July 2, 2018. The objective evidence, including the November 2016 VA examination, documents that the Veteran’s left knee extension was limited to no worse than 10 degrees. As such, an increased rating is not warranted under DC 5261 prior to July 2, 2018. However, the Board has also considered the applicability of alternate diagnostic codes in the context of the Veteran’s claim. First, regarding limitation of flexion under DC 5260, the Board notes that the November 2016 VA examination documented left knee flexion limited to 115 degrees, which is noncompensable. Moreover, in March 2017, he was noted to have knee pain with full range of motion and normal gait. This is probative evidence which weighs against a separate compensable disability rating for limitation of flexion. Additionally, the Board has considered the applicability of DC 5258 based upon the November 2016 VA examiner’s findings of left knee meniscal dislocation with frequent episodes of joint pain, weakness, and swelling; however, a separate 20 percent disability rating is not warranted thereunder, as the November 2016 examiner also documented that the Veteran did not have a history of recurrent effusion, and in order to warrant the sole 20 percent disability rating available under DC 5258, the Veteran must display all the rating criteria, including frequent episodes of locking, pain, and effusion. To the extent that he displayed effusion in January 2017, the Board notes that he did not concurrently display locking; moreover, upon follow up in April 2017, it was noted he did not have effusion, which is further evidence against a history of effusion. The Board has also considered DC 5257 under which an additional disability rating is potentially warranted for knee impairment resulting in recurrent subluxation or lateral instability. Notably, during the November 2016 VA examination, the Veteran reported left knee symptoms including left knee buckling and giving way, and the VA examiner documented additional contributing factors of disability including instability of station. The examiner also noted a history of slight left knee lateral instability, and while joint stability testing was indicated, the examiner was not able to perform such tests due to pain and weakness. Finally, the Veteran reported the use of assistive devices for his left knee, including the regular use of a brace. Subsequent VA treatment records from January 2017 and April 2017 document that the Veteran displayed left knee varus with valgus laxity. Thus, after resolving any reasonable doubt in favor of the Veteran, the Board finds that a separate 20 percent disability rating is warranted for slight left knee instability prior to July 2, 2018 pursuant to DC 5257. While the November 2016 examiner had documented a history of “slight” lateral instability, the Board finds that such finding with the use of a brace and subsequent findings of valgus laxity by medical professionals would more reasonably be indicative of moderate instability. However, the Board finds that the preponderance of the evidence is against a finding of severe instability in the left knee prior to July 2, 2018, as the examinations and the VA treatment records were not document severe laxity or instability. The Board has also considered the effect of pain and weakness in evaluating the Veteran’s left knee disability. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence of record reveals complaints of left knee pain with range of motion with no additional limitation in range of motion following repetitive-use testing during the November 2016 examination. The Veteran had weakness in the left leg, which the Board finds is contemplated by the 10 percent rating for limitation of extension and the now 20 percent rating for instability. Thus, prior to July 2, 2018, the Veteran has a 30 percent combined rating in the left knee, which contemplates a severe left knee disability with functional loss and the Veteran’s muscle strength of 3/5. The examiner documented that the Veteran did not have atrophy in the left leg, which is evidence against more than severe weakness. The November 2016 examiner documented that there was evidence of pain with weight bearing and that the Veteran had mild tenderness to palpation to the medial area of the patella joint line. The Veteran was able to perform repetitive use testing with three repetitions with no additional limitation of range of motion. Thus, even in contemplation of the tenets of 38 C.F.R. §§ 4.40 and 4.45, the Board finds the evidence does not support an initial evaluation in excess of 10 percent for limitation of motion or an initial evaluation in excess of 20 percent for lateral instability. Given the above, while the preponderance of the evidence of record weighs against the Veteran’s claim of entitlement to an initial disability rating in excess of 10 percent for left knee arthritis with limitation of extension prior to July 2, 2018 under DC 5261, after resolving any reasonable doubt in favor of the Veteran, the Board finds that the preponderance of evidence weighs in favor of a separate, additional 20 percent disability rating for slight instability of the left knee prior to July 2, 2018 under DC 5257, and to that extent only, the Veteran’s claim for an increased rating is granted. B. From September 1, 2019 The Veteran’s attorney has asserted within a February 2019 brief that extraschedular consideration is warranted for the Veteran’s left knee disability, based upon the Veteran’s contention that he has experienced a leg length discrepancy because of the surgeries required for his knee disability, which leg length discrepancy is not contemplated by the rating criteria for the Veteran’s knee claim. However, as discussed below, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to an increased disability rating in excess of 60 percent for status post left knee total replacement from September 1, 2019. The relevant objective evidence of record includes an August 2019 VA examination, which was utilized as a basis for the Veteran’s current 60 percent disability rating from September 1, 2019. At this August 2019 VA examination, the Veteran’s diagnosis was left total knee replacement, with residual pain, decreased range of motion, and weakness. The examiner noted that the Veteran’s July 2018 left total knee replacement surgery was not a success, as the wrong size prostheses was placed, and that his current symptoms included left knee mild-to-severe pain, weakness, and giving out, including left knee pain increased with walking, standing, pivoting, or squatting. The Veteran reported flare-ups of the knee including monthly throbbing left knee pain with walking and heat, and functional loss or functional impairment that limits walking, standing, and bending. Left knee range of motion included flexion to 110 degrees and extension to 15 degrees with pain on flexion and extension. There was objective evidence of localized tenderness or pain on palpation of the joint and pain with weight bearing, without objective evidence of crepitus, and without additional loss of function or range of motion upon repetition. The examiner noted that the Veteran was not being examined immediately after repetitive use over time or during a flare up but stated that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare ups. The examiner also stated that pain and weakness significantly limited functional ability with repeated use over a period of time and during flare ups, which the examiner described in terms of range of motion as flexion to 90-95 degrees and extension to 25 degrees. Muscle strength testing revealed slightly limited left knee strength of 4/5 in flexion and extension, without muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion, no recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment, and no meniscal (semilunar cartilage) conditions. The Veteran’s surgical history included left knee total knee replacement in 2018, with chronic residuals consisting of severe painful motion or weakness. The Veteran reported occasional use of wheelchair, regular use of brace, regular use of cane, and occasional use of walker for his left knee disability. Finally, the examiner noted functional impact on the Veteran’s ability to perform any type of occupational task, including impact and limitation on any job requiring walking, standing, lifting, and bending. The Veteran is already in receipt of the maximum schedular disability rating of 60 percent under DC 5055 based upon the August 2019 VA examination discussed above. To the extent that the Veteran’s attorney has asserted within a February 2019 brief that extraschedular consideration is warranted for the Veteran’s left knee disability based upon the Veteran’s contention that he has experienced a leg length discrepancy, the Board notes that this condition is specifically contemplated by the schedular rating criteria under DC 5275, regarding shortening of the bones of the lower extremity. Thus, because the claimed symptom of a leg length discrepancy is specifically contemplated by the schedular rating criteria, an extraschedular disability rating is not warranted. In any event, the Veteran has not submitted a specific claim for service connection for a left leg discrepancy as secondary to his left-knee disability; therefore, if the Veteran and his attorney believe that his service-connected left knee disability has resulted in a leg length discrepancy, he is invited to file a claim for that specific disability. In conclusion, a disability rating in excess of 60 percent for the Veteran’s left knee residuals from September 1, 2019 is precluded as a matter of law, because the Veteran’s left knee disability is already rated at the highest level for knee replacement surgery, which recognizes the Veteran’s resulting impairment involving his left knee and is the highest allowable schedular disability rating under law. 2. Entitlement to a TDIU rating. The Veteran also asserts that he is entitled to a TDIU rating due to his service-connected disabilities. His attorney asserted within February 2019 and November 2020 briefs that the Board should find that the Veteran is entitled to a TDIU because the combined effects of his service-connected disabilities prevent him from obtaining and maintaining a substantially gainful occupation. Specifically, the attorney stated that VA medical records show that the Veteran’s mental health condition affects his ability to maintain significant relationships, and chronically manifests as irritability, and that his left knee disability significantly impairs his ability to perform activities of daily living. The attorney stated that although the Veteran has a significant education history and a history of successfully working in office environments, current medical evidence shows that the combined effects of his mental health and left knee disabilities would prevent even sedentary employment at this time. The attorney also asserted that the Veteran’s mental health condition and left knee disability have both persisted at this level of severity since he first filed his claims, and the evidence shows that he last worked in 2006. A TDIU rating may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under the schedular criteria. If there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. The central inquiry in determining whether a veteran is entitled to a TDIU rating is whether service-connected disabilities alone are of sufficient severity to produce unemployability. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough; a high disability rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Additionally, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, it is a determination for the adjudicator. The Veteran is currently service-connected for persistent depressive disorder with posttraumatic stress disorder (PTSD) (rated as 50 percent disabling from May 7, 2012 and as 70 percent disabling from September 13, 2018); status post left total knee replacement (rated as 10 percent disabling from July 11, 2016, as 100 percent disabling from July 2, 2018, and as 60 percent from September 1, 2019); and a left knee surgical scar (rated as noncompensable from July 11, 2016). Based upon the above, the Veteran’s combined disability rating is 50 percent from May 7, 2012, 60 percent from July 11, 2016, 100 percent from July 2, 2018, and 90 percent from September 1, 2019. As such, the Veteran meets the schedular criteria for a TDIU rating from September 1, 2019, but no sooner, although the Board is mindful that the failure to meet the schedular percentage requirements prior to that date does not preclude the availability of a TDIU rating on an extraschedular basis. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that the initial decision whether to remand for referral to the Director of Compensation Service under 38 C.F.R. § 4.16(b) should address whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service- connected disabilities. Specifically, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Following a review of the evidence of record, and as discussed below, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to a TDIU rating for the entire period on appeal, and that referral to the Director of Compensation under 38 C.F.R. § 4.16(b) is also not warranted, as the probative evidence of record does not document that the Veteran’s service-connected disabilities have precluded him from securing or following a substantially gainful occupation during the appeal period. In his initial February 2011 VA Form 21-8940, Veteran’s Application for Increased Compensation Based Upon Unemployability (TDIU application), the Veteran reported that he could not work due to traumatic injuries to his knees and spine. He reported that his disability affected full-time employment, that he last worked full-time, and that he became too disabled to work all in February 2006. He reported that the most he earned in one year was $47,000 in 1990 as a real estate broker. He reported an employment history in property management with Old Port Cove Corp. from November 2004 to December 2005, with prior self-employment in real estate from January 2001 to November 2004. He stated that he left his last job due to disability and that he had not tried to obtain employment since he became too disabled to work. He reported an educational history including two years of college with additional training before he was too disabled to work (licensed real estate broker 1985, licensed security guard 1998, licensed private investigator 1999, licensed community association manager 2004) and additional training since he became too disabled to work (continuing education for Florida real estate commission license renewal every two years continuously). Finally, he stated that the pain in his knees, legs, feet, ankles, neck, and spine prohibited him from doing his job anymore and that he was forced to leave his job in real estate and took early Social Security retirement at age 62 in 1998. The Veteran filed a second TDIU application in July 2013. At that time, he reported that he was unable to work due to his back, bilateral knees, and neck. He stated that his disability affected full-time employment, that he last worked full time, and that he became too disabled to work all in December 2004 (though he noted that his condition restricted work off and on since 1957). He reported an employment history in property management with Old Port Cove Corp. from January 2004 to December 2004 and prior self-employment in real estate from January 2000 to December 2003. His reported educational history included three years of college, with additional training including annual real estate continuing education to maintain his real estate license. In a third February 2014 TDIU Application, the Veteran asserted that he could not work due to PTSD and injuries to his knees, back, and legs. He reported that his disability affected full-time employment, that he last worked full-time, and that he became too disabled to work all in February 2006. He reported that the most he earned in one year was $47,000 in 1990 as a real estate broker. He reported an employment history in property management with Old Port Cove Corp. from November 2004 to December 2004, with prior self-employment in real estate from January 2001 to November 2004. He stated that he left his last job due to disability and that he had not tried to obtain employment since he became too disabled to work. He reported an educational history including two years of college with additional training before he was too disabled to work (principles of real estate 1985 to present, licensed security guard 1998, licensed community association manager 2004-05) and additional training since he became too disabled to work (continuing education for Florida real estate commission license renewal every two years continuously). Finally, he stated that the pain in his knees, legs, feet, ankles, neck, and spine prohibited him from obtaining employment, and that his PTSD disorients him daily and the anxiety keeps him from concentrating for even short periods of time. He noted that he must sit down and stand up for pain every 15-20 minutes and that he rests most of the time, with very strong medications. Next, the Veteran submitted a fifth TDIU Application in November 2015, when he reported that his PTSD, anxiety with dysthymic disorder, and left knee with back secondary all prevented him from working. He stated that his disability affected full-time employment in November 2004, that he last worked full-time in November 2004, and that he became too disabled to work in December 2004. He stated that the most he ever earned in one year was between $47,000 and $50,000 in 1990 working in real estate. He reported an employment history including self-employment in real estate from January 2000 to December 2005. He reported an educational history including two years of college with additional education and/or training before he was too disabled to work (continuing real estate education annually from 1985 to December 2004) but without any education or training since he became too disabled to work. He stated that his mental and physical pain prohibit employment and that he is disoriented and had anxiety that limits concentration and attentiveness for employment. He stated that his work requirements are gone because he was unable to understand even small assignments or requirements. In his sixth, and most recent, September 2018 TDIU Application, the Veteran asserted that he was prevented from working due to all of his service-connected disabilities. He reported that his disability affected full-time employment in 1957, and that he last worked full-time and became too disabled to work in December 2004. He stated that the most money he earned in one year was $48,000 in 1990 working in real estate, but he did not report any further occupational history. He reported an educational history including three years of college, with additional education and/or training before and since he became too disabled to work, although no additional information was provided. In reviewing the various TDIU Applications submitted by the Veteran, the Board notes several inconsistent statements that damage his overall credibility. For example, the Veteran has reported varying dates as to when he last worked, which are inconsistent with one another. For example, in his February 2011 and February 2014 TDIU Applications, he wrote that he became too disabled to work in February 2006. In his June 2013, November 2015, and September 2018 TDIU Applications, he reported that he became too disabled to work in December 2004. The Veteran has also reported varying and inconsistent details regarding his employment history. For example, in his February 2011 TDIU Application, he reported that he worked in property management at Old Port Cove Corp. from November 2004 to December 2005. In his July 2013 TDIU Application, he reported that he worked for Old Port Cove Corp. from January 2004 to December 2004. In his February 2014 TDIU Application, he reported that he worked at Old Port Cove Corp. from November 2004 to December 2004. In his November 2015 and September 2018 TDIU Applications, the Veteran reported no prior employment at Old Port Cove Corp. Additionally, the Board notes that private medical records further document inconsistencies in the Veteran’s reports that he was prohibited from working. Private treatment records from July 2007, August 2007, and October 2007 document three separate reports from different physicians that the Veteran was, in fact, working at those times. For example, in July 2007 and October 2007 records, a physician wrote, “The patient is currently employed as a real estate broker.” In a separate August 2007 private record from a different physician, it was noted, “He is [] actively employed as [an] estate broker.” A third physician wrote in an August 2007 record, “The patient is a real-estate broker and lives alone.” In an August 2007 record that the Veteran completed for a private medical facility, when asked his occupation, the Veteran wrote, “RE BROKER,” which the Board reasonably presumes to refer to real estate broker. When asked if he was currently working, the Veteran circled “yes.” This was signed by the Veteran on August 23, 2007, and he certified that his answers were correct to the best of his knowledge. This would show that the Veteran was, in fact, working in August 2007. As noted above, the Veteran has varied the date of when he last worked. The inconsistency of the facts as to when he last worked, reporting that he was not working when contemporaneous private medical records from three separate physicians show he was working, has further damaged his overall credibility. He signed each of his six TDIU applications that he submitted over a seven-year period attesting to the truth of the facts contained therein, which facts were not accurate, again, as he claimed he stopped working in either 2004 or 2006, when he was still working in 2007 and at least until October 2007. In a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, received in December 2015 (which form was completed by the Veteran himself), he wrote he last worked in December 2005. In a January 2016 VA Form 21-4138, Statement in Support of Claim, the Veteran wrote he had “not worked any job since the end of 2004.” He has varied the date he became too disabled to work from February 2006, to December 2004, to December 2005, when private medical records show he was working in 2007. All of the Veteran’s six TDIU applications were completed after 2007. The Board has no reason to question the accuracy of what is documented within the private treatment records, as they are all consistent with each other that the Veteran was working in 2007 as a real estate broker, and the Veteran signed one of the documents contemporaneously in August 2007 stating that he was working. Additionally, within a January 2019 VA Form 21-4192, a representative of Old Port Cove Management of the Treasure Coast, Inc., reported to VA that the Veteran worked there from January 1, 2004 to December 29, 2004 doing client development for property management. The employer stated that there were no concessions made by reason of the Veteran’s age or disability, and provided that the reason for the Veteran’s termination was that the company entity was dissolved. The employer clarified in additional remarks that the Veteran was employed to develop new relationships with homeowner’s associations in the Treasure Coast of Florida, and the venture was pursued for one year, after which it was determined that there was not enough business in the area to support the office, which was closed in December 2004, and as a result the Veteran’s employment was terminated. The Board notes that this is probative evidence which weighs against the Veteran’s claim of entitlement to a TDIU, as his prior employer reported that he was terminated due to a business closure, rather than as a result of his service-connected disabilities. Thus, based upon the above inconsistencies, the Board questions the Veteran’s overall credibility in the context of his TDIU claim, as there are multiple instances within the record that show the Veteran reporting inconsistent facts regarding his employment history. VA treatment records also weigh against a finding that the Veteran was precluded from securing or following a substantially gainful occupation. In February 2012, the Veteran reported that he was working on refurbishing a home that he intended to move into, and that he had worked as a real estate agent. In July 2013, he reported that he was living alone in a condo after selling the house he was previously living in. At an August 2013 follow-up visit, the Veteran reported that he retired as a bank vice-president since 1984, and that he also had worked in real estate and as a sheriff for 14 years. He stated that his finances were tight, based on his social security benefits and a small pension. During a VA respiratory examination in August 2013, the same month that the Veteran reported that he was retired, he reported that he worked in real estate, which was mostly on the computer so he could work at his own pace. He reported that he had one deal in the past year and that he planned to fully retire. During a May 2014 orthotic follow up visit, the Veteran was fitted with two pair of orthotic shoes, while an additional third pair was authorized for his work. This tends to show that the Veteran was continuing to work as of May 2014. Additionally, as late as May 2017, the Veteran reported that his left knee surgery had been postponed, and he was preparing for surgery and was getting his “personal needs and business” in order prior to surgery. This also tends to show that the Veteran had maintained a business as late as May 2017. Regarding occupational impairment resulting from the Veteran’s service-connected left knee disability, the Board notes that upon VA knee examination in November 2018, the Veteran reported functional impact upon the ability to perform any type of occupational task, including difficulty with prolonged standing and walking, which affects physical employment by interfering with working in large buildings such as a warehouse, or outside walking long distances. Another November 2018 VA knee examination documented functional impact including increased fatigue and decreased stamina, and the examiner stated that the Veteran was medically restricted from impact sports or activities, and could not at that time climb stairs or ladders. Finally, an August 2019 VA knee examination documented functional impact on the Veteran’s ability to perform any type of occupational task, including impact and limitation on any job requiring walking, standing, lifting, and bending. While the Board accepts this evidence as probative evidence of some impairment upon the Veteran’s ability to perform physical occupational tasks, the Board finds that such evidence does not warrant a finding that the Veteran was precluded from securing or following a substantially gainful occupation based upon such impairment from his left knee disability. As noted above, the evidence documents the Veteran’s own reports that he continued to work as recently as May 2017. Regarding the Veteran’s service-connected psychiatric disorder, during an initial August 2013 VA PTSD examination, a VA examiner concluded that the Veteran’s psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that he had been retired since 1984, although he occasionally helped out a friend who is a realtor. He stated that his prior experience included being the vice-president of a bank, in real estate, and working as a deputy sheriff. He reported he currently supported himself through social security and a small pension. Upon subsequent VA PTSD examination in January 2016, a VA examiner concluded that the Veteran’s service-connected psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. His occupational history was largely unchanged since the prior August 2013 VA examination, and he reported he had been retired since 1984 when he was working as the vice president of a bank. During a July 2017 VA psychiatric examination, a VA examiner again concluded that the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he remained retired since 2004, when he retired as a real estate broker for the past 15 years. He stated that in 2004 he had been working as a community organization manager and new development director but that he stopped working because he could no longer go up and down stairs due to spinal stenosis, so his position was discontinued. Finally, during a November 2018 VA psychiatric examination, a VA examiner concluded that the Veteran’s condition resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he continued to be retired since 2004, and the examiner identified relevant psychiatric symptoms, including difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The VA examiner concluded that a result of his service-connected psychiatric disorder, the Veteran was considered fully capable of managing funds in his own best interest. Additionally, his abilities to understand and follow instructions, to retain instructions as well as sustain concentration to perform simple tasks, and to sustain concentration to task persistence and pace were all considered not impaired, while his abilities to respond appropriately to coworkers, supervisors, or the general public, as well as the ability to respond appropriately to changes in the work setting, were considered moderately impaired, which indicated that functioning may be effortful or at the expense of functioning in other areas; however, it did not equate to serious or major limitation, or substantial loss of or no useful ability to function. The Board finds that the preponderance of the evidence is against a finding that the Veteran was precluded from securing or following a substantially gainful occupation due to his service-connected psychiatric disability. The Board affords great probative weight to the findings of the November 2018 VA examiner that the Veteran’s occupational abilities were either not impaired or no worse than moderately impaired. As such, this is probative evidence which also shows that the Veteran was not precluded from securing or following a substantially gainful occupation due to his service-connected psychiatric disability. To the extent that the Veteran reported consistently throughout the psychiatric examinations discussed above that he was retired since 2004 due to any mental health symptomatology, the Board finds that his lay reports in this context lack credibility, and therefore, probative value. The Veteran’s July 2017 report that his position was eliminated due to physical problems is strikingly inconsistent with the employment information provided by Old Port Cove Management above, wherein the employer stated that the Veteran was not afforded any concessions during his employment due to his age or disability, and that his position was ultimately terminated due to a business closure. Additionally, the Board finds it probative that the Veteran attributed his reported occupational impairment to a nonservice-connected spinal condition, rather than his service-connected psychiatric disability, and the July 2017 VA examiner also noted similarly that the Veteran did not assert that mental health symptoms contributed to job-related impairments. The Board has also considered two private nexus opinions submitted by the Veteran in support of his TDIU claim. A July 2013 private employability opinion from Dr. Howard B. Levene notes that the Veteran had requested the doctor to “comment on his employability.” Dr. Levene wrote that he “would agree that [the Veteran’s] advanced age and current spine pathology would prevent him from obtaining employment that requires physical activity.” Notably, the Veteran is not currently service-connected for a spine disability, and age cannot be considered in the context of a TDIU claim; therefore, Dr. Levene’s opinion is not probative evidence that supports the Veteran’s TDIU claim. In February 2014, Dr. Craig H. Lichtblau opined that the Veteran did not have the functional capacity to work four hours per day at the time, which is more likely than not a result of the injuries he sustained while actively enlisted in the Army. Dr. Lichtblau stated that the Veteran should be in a setting which allows him to take breaks to change positions from sit-to-stand/stand-to-sit frequently at will for positional comfort, and that he could sit, stand, and walk as tolerated, and perform limited bending, reaching overhead, and limited pushing and pulling, but that he should avoid kneeling, squatting, climbing unprotected heights, running, and jumping. Dr. Lichtblau additionally concluded that the Veteran’s estimated physical demand characteristics from the hips-to-overhead position should remain at the sedentary level, which he stated was specifically defined by the Dictionary of Occupational Titles as lifting 10 pounds or less frequently. He noted that it should be understood that the Veteran would suffer from acute, intermittent exacerbations of pain and discomfort, with good days and bad days. He concluded that the Veteran would not be able to maintain gainful employment in the competitive open labor market or in a sheltered environment with a benevolent employer secondary to acute, intermittent, exacerbations of chronic pain. He further opined that the Veteran suffered from the secondary effects of aging combined with his current impairment, and that his disability will actually increase over time. As above, the Board has considered the February 2014 opinion of Dr. Lichtblau, but finds that it is of little probative value in the context of the Veteran’s TDIU claim. First, the Board finds that it is significant that the doctor attributed the Veteran’s occupational impairment to “chronic pain” generally, rather than the Veteran’s service-connected psychiatric disorder or left knee disability specifically. Additionally, the doctor stated that the Veteran’s physical impairments would limit him to sedentary employment, which the Board cannot equate to preclusion of performing substantially gainful employment. In sum, the Board finds that while the probative evidence of record documents some occupational impairment due to the Veteran’s service-connected psychiatric and left knee disabilities, the Board also finds that the evidence of record also indicates that the Veteran retains at least some ability to make and maintain relationships with those around him, as he has himself reported good relationships with his daughter and some close friends, with whom he has worked throughout the appeal period. This is evidence that weighs against a finding that he is precluded from securing or following a substantially gainful occupation, as the ability to maintain relationships and handle conflict is a skill utilized in the workplace. Additionally, the Veteran’s multiple TDIU applications report his previous educational and occupational history in a variety of subject areas, including banking, real estate, security, and law enforcement. The Veteran’s educational history, including at least two years of college with varied occupational experience, would further allow him to perform in a variety of occupational settings. The Veteran’s skills and past experience in real estate and home rehabilitation suggest that he has mechanical, repair, and building skills that could be utilized in a variety of positions, including teaching others about real estate. His past experience in security and law enforcement could also reasonably be applied to a variety of occupations, including consulting or teaching about security, personal safety, and similar areas. The Veteran could perform jobs that involve data entry or being a telemarketer. With data entry, the Veteran can enter data into the system, which job can usually be done from home, where he enters information into a system. A telemarketer is usually provided with a script that describes the product or services and which job can also be performed from home. These kinds of jobs would be repetitive, have structure, would not necessarily involve new tasks or novel concepts, and would allow the Veteran to take breaks as needed so that he could sit and stand to relieve any knee pain. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment. Given the above, the Board concludes that there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities, even with consideration of both economic and non-economic components. The preponderance of evidence does not weigh in favor of a finding that the Veteran has been precluded from an occupation earning more than marginal income (outside of a protected environment) above the poverty threshold for one person. Additionally, the Veteran’s history, education, skill, and training all weigh in favor of a finding that the Veteran retains the physical ability to perform the types of activities required by various potential occupations, as well as the mental ability to perform the activities required by various occupations, which occupations have been described above. See Ray, 31 Vet. App. 58. In conclusion, the Board finds that the Veteran’s service-connected disabilities, when considered individually and collectively, do not result in functional impairment that renders the Veteran unable to secure or follow a substantially gainful occupation consistent with his educational and vocational history for any period on appeal. Moreover, the Board finds that any resulting impairment of function is adequately contemplated by the current disability ratings assigned for the Veteran’s service-connected disabilities. As the preponderance of evidence weighs against the Veteran’s claim, there is no reasonable doubt to be resolved, entitlement to a TDIU rating is denied for the entire period on appeal, and referral for extraschedular TDIU consideration is not warranted for any period on appeal. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.