Citation Nr: 21004200 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-04 775 DATE: January 26, 2021 ORDER The claim for service connection for kidney stones is granted. The claim for increased evaluation for degenerative disc disease of the lumbar spine, rated 10 percent prior to January 17, 2017 and 40 percent since then, is denied. The claim for a higher rating than 20 percent for right lower extremity radiculopathy is denied. The claim for a higher rating than 20 percent for left lower extremity radiculopathy is denied. The claim for increased evaluation for right knee limitation of flexion (previously, right knee impairment), rated 10 percent prior to September 27, 2019 and 20 percent since then, is denied. A 10 percent rating for right knee limitation of extension, since March 26, 2018, is granted. The claim for a higher rating than 10 percent for right knee lateral meniscus tear is denied. The claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to March 26, 2018 is denied. FINDINGS OF FACT 1. The Veteran’s kidney stones, or presently stated as residuals of the same condition, began during service. 2. Prior to January 17, 2017, the Veteran’s lumbar spine degenerative disc disease did not involve forward flexion of the thoracolumbar spine greater than 30 degrees but no greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis reversed lordosis, or abnormal kyphosis. 3. Since January 17, 2017, the lumbar spine condition was not manifested by any form of ankylosis, or Intervertebral Disc Syndrome (IVDS) with any instance of incapacitating episodes of that condition. 4. The right and left sciatic radiculopathy condition is moderate in severity. It did not attain a moderately severe level. 5. Prior to September 27, 2019, the Veteran did not have flexion limited to 30 degrees. Following then, while the condition worsened, there was not flexion limited to 15 degrees. 6. Since March 26, 2018, there is competent evidence that knee extension was limited to 10 degrees. 7. The Veteran has slight instability of the right knee. 8. The Veteran was not incapable of securing and maintaining substantially gainful employment prior to March 26, 2018. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria are met for service connection for kidney stones. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria are not met for an increased evaluation for degenerative disc disease of the lumbar spine, rated 10 percent prior to January 17, 2017 and 40 percent since then. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2019). 3. The criteria are not met for a higher rating than 20 percent for right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2019). 4. The criteria are not met for a higher rating than 20 percent for left lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2019). 5. The criteria are not met for an increased evaluation for right knee limitation of flexion (previously, right knee impairment), rated 10 percent prior to September 27, 2019 and 20 percent since then. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2019). 6. Resolving reasonable doubt in the Veteran’s favor, the criteria are met for a 10 percent rating for right knee limitation of extension, since March 26, 2018. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2019). 7. The criteria are not met for a higher rating than 10 percent for right knee lateral meniscus tear. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.20, 4.71a, Diagnostic Code 5257 (2019). 8. The criteria are not met for a TDIU prior to March 26, 2018. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.10, 4.15, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Marine Corps from July 1979 to September 1983. He had extensive additional reserve duty over the next 20 years. The Board previously considered this case and remanded it several times, the last occasion by July 2019 issuance. The remand action requested further VA Compensation and Pension Examination on these claims. Examinations were provided in September 2019 and they were based on an examination of the Veteran, a review of the record, and provided a description of the Veteran’s back and knee disabilities sufficient for the Board to make a well-informed determination. Further requested, consideration of an inextricably intertwined TDIU claim. There was substantial compliance with the remand directives. The increased rating matters are now back for further appellate consideration. The VA Regional Office granted the TDIU, effective March 26, 2018. As to whether any earlier availability potentially of a TDIU were warranted, since part of the claim to be considered, the Board addresses that question for the time period preceding March 2018. Service Connection 1. The claim for service connection for kidney stones is granted. Under VA law, direct service connection is available for current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2019). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d) (2019). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Based on the current record, there is sufficient basis to find that the evidence and findings substantiate the grant of service connection for kidney stones. Initially there was considerable and substantively warranted grounds to take a closer look at the medical evidence, the basis for several remands, because the Veteran potentially had pre-existing kidney problems before active service in 1979. Several VA practitioners post-service observed that apparently he only had one functioning kidney before service. This raised an initial threshold evidentiary determination whether to apply direct incurrence, or an aggravation analysis. At first the discussion was for the latter. A VA examiner’s opinion in December 2013 found as follows, that kidney stones documented on an in-service 2001 Line of Duty Determination was conclusive evidence of aggravation of pre-existing disability diagnosed in 1994. Later the Board raised a concern with the accuracy of the record. Notably, the Veteran’s active service was primarily during the early 1980s. What occurred in 1994 did not “pre-exist service.” The examiner did not address whether there was clear and unmistakable evidence employed in the examiner’s discussion to rebut VA’s presumption of soundness. The Board remanded for another opinion. Further examination inquiries were unsuccessful, however, and the last VA examiner could not offer a definitive opinion citing lack of background information. Service connection is reasonably warranted on a direct incurrence basis. The Board finds the presumption of soundness at service entrance is not rebutted, because a generalized condition with an absence of or nonfunctioning kidney still is not the same condition as kidney stones. Arguably, if notated at service entrance a pre-existing kidney disorder that might change things. None was noted at entrance in 1979. Nor does the presumption of soundness apply to the subsequent period of reserve duty. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Additionally, kidney stones did not clearly and unmistakably pre-exist service entrance, including according to the Service Treatment Records (STRs). If the Veteran had kidney stones in 2001 documented by Line of Duty Report, it clearly happened consistent with service during Active Duty for Training (ACDUTRA). See 38 C.F.R. § 3.6. The 2013 VA examiner’s opinion, if attempting to address an in-service aggravation claim, did state that the renal stone attack was linked to being “required to perform tests of physical endurance in a hot climate.” Further, he claims residuals, even if the stones are gone. He had active symptoms that apparently concluded in 2005, for the most part. As indicated per April 2020 follow up examination, the Veteran indicated lethargy and weakness as a consequence of a kidney condition, there were test signs of a possible issues with presence of smaller stones in the left kidney region. The residuals of kidney stones qualifies as a current disability. VA examiners review it as a continuing condition requiring continuing monitoring. Accordingly, resolving reasonable doubt is resolved in the Veteran’s favor here that a current condition is shown. 38 C.F.R. § 3.102. The criterion of a current disability is met. See generally, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the existence of a current disability may be satisfied when a claimant has a disability at the time a claim for compensation is filed or during the pendency of that claim even though the disability resolves prior to adjudication of the claim). The preponderance of the evidence shows that the Veteran’s in-service condition at least as likely as not resulted in present disability, the residuals of having had kidney stones. This finding is based on a direct incurrence in service. For these reasons, the claim is granted. Increased Rating 2. The claim for increased evaluation for degenerative disc disease of the lumbar spine is denied. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. When evaluating a musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, particularly during times when these symptoms “flare up,” such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s back condition is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, for lumbosacral strain. Diagnostic Code 5237 is in turn to be evaluated pursuant to VA’s General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The General Rating Formula provides for the assignment of a 20 percent rating when there is forward flexion of the thoracolumbar spine greater than 30 degrees but no greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis reversed lordosis, or abnormal kyphosis. The next higher available 40 percent rating requires forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5237. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under this formula, a 40 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of assigning evaluations under Code 5243, an “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. There is no probative medical or lay evidence of record indicating the Veteran has ever had an incapacitating episode due to his low back disability. Therefore, the Formula for Rating Intervertebral Disc Syndrome does not apply. The current compensation levels in effect for service-connected degenerative disc disease of the lumbar spine represents the most accurate disability evaluation. The condition was rated 10 percent from July 26, 2013, and 40 percent from January 17, 2017. For the initial time period from July 26, 2013 to January 17, 2017, the next higher rating of 20 percent would require the following: forward flexion of the thoracolumbar spine greater than 30 degrees but no greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Here, on VA examination from November 2013, for evaluation of diagnosed low back strain and degenerative disc disease, the Veteran had 65 degrees of forward flexion and combined range of motion 140 degrees. These results were the same including after repetitive motion testing, and factoring in any functional loss due to pain on use, weakness, instability, and other factors. He did not have guarding or muscle spasm of the thoracolumbar spine. He did not have Intervertebral Disc Syndrome (IVDS). Accordingly, a 10 percent rating was the most accurate representation. After his November 2013 VA examination, low back pain was consistently listed on his active problem list in his VA treatment records. However, he did not seek treatment specifically for his back disability. At two March 2014 treatment appointments for a left toe problem, it was noted that he had chronic back ain, but there was no indication that it had worsened since his November 2013 VA examination. A VA treatment note from February 2017 noted that the Veteran had not received medical treatment since 2015. Between his November 2013 and January 2017 VA examinations, the Veteran did not provide lay evidence stating that his back disability had worsened. For the remaining timeframe from January 17, 2017 onwards, there is a 40 percent rating in effect. At the examination, his forward flexion was 30 degrees. His extension was 10 degrees. His lateral flexion and rotation were all 20 degrees bilaterally. After three repetitions, his forward flexion had decreased to 10 degrees, and his extension to 5 degrees. His lateral flexion and rotation were all 10 degrees bilaterally. During a flare up, the examiner stated that his range of motion would be 0 degrees for extension, flexion, lateral flexion, or lateral rotation. These findings meet the 40 percent criteria. However, the Veteran did not have unfavorable ankylosis at the examination. “Unfavorable ankylosis” is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The medical and lay evidence of record does not show that any of these are present. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. Subsequent VA treatment records from February 2017 shows that his spine was aligned normally with no costovertebral angle tenderness. His paraspinous muscles were non-tender. It was noted that, “[h]e enjoys walking many miles.” At a March 2017 physical therapy appointment, he reported his back was “very stiff” at rest with “little pain.” He was able to walk for 20 minutes before needing to stop and lean on a wall. In April 2017, he reported having back pain, but also stated he had walked 1 mile from his home to the physical therapy facility. He requested a back brace and one was issued. Low back pain continued to be listed in his active problem list but not directly treated. The Veteran underwent a VA examination in March 2018 for his low back disability. He described his symptoms as constant back pain made worse by performing trunk range of motion such as bending and twisting, weight bearing, and sitting. He stated it impacted his ability to walk and do activities requiring use of the back. He was able to perform range of motion testing and the examiner found that the Veteran did not have ankylosis. Additionally he did not have any of the characteristics of unfavorable ankylosis as defined by VA regulation. A July 2019 VA treatment note showed chronic back pain but no description of its severity. In a September 2019 VA treatment record, it was noted he had longstanding chronic back pain. At September 2019, November 2019, and January 2020 VA psychiatrist appointments, he stated that he wished to move closer to a VA hospital so due to his diabetes, obesity, back pain, and inability to move better. In June 2020 he reported back pain. He underwent another VA examination in September 2019. He reported constant back pain and that he could barely walk. His forward flexion was 30 degrees. His extension, lateral flexion, and lateral rotation were all 0 degrees. He could not perform repetitive motion testing. The examiner did not find that he had ankylosis. Further, the Veteran did not have any of the characteristics of unfavorable ankylosis as defined by VA regulation. The medical and lay evidence does not show that the Veteran has unfavorable ankylosis. “Ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Even if he is unable to move his thoracolumbar spine during a flare up, the record does not show that presence of any of the characteristics set forth in the VA regulation that defines unfavorable ankylosis. For these reasons, the preponderance of the evidence weighs against this claim for increased rating for low back disorder. VA’s benefit-of-the-doubt doctrine is not applicable under these circumstances and the claim is being denied. 3. The claim for a higher rating for right lower extremity radiculopathy is denied. 4. The claim for a higher rating for left lower extremity radiculopathy is denied. With regard to radiculopathy, generally, neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. A note to 38 C.F.R. § 4.124a states that the term “incomplete paralysis” where involving peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Also, when peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. The provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8520 pertain to impairment involving the sciatic nerve. Under that Diagnostic Code, a maximum 80 percent evaluation is assignable for complete paralysis to this nerve group, where the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Further evaluations may be assigned for incomplete paralysis of this nerve group, when severe in degree, with marked muscular atrophy, warranting a 60 percent rating; moderately severe, warranting a 40 percent rating; moderate, a 20 percent rating; and mild, a 10 percent rating. On reviewing the pertinent evidence and findings, increased ratings for the Veteran’s bilateral lower extremity radiculopathy are not warranted. Here, there is a 20 percent rating that applies to right and left side lower extremities respectively for sciatic radiculopathy. See Diagnostic Code 8520. Per the rating criteria, this represents moderate level impairment. The next higher 40 percent rating represents moderately severe impairment. Based upon the evidence, particularly the VA examination reports addressing a back disorder and secondary neurological symptoms, there are not findings supporting increase at this time. A March 2013 VA treatment record notes low back pain with no radiation of pain. At the Veteran’s November 2013 VA examination, the examiner found that the Veteran did not have radiculopathy or radicular symptoms in either lower extremity. At his January 2017 VA examination, the examiner also specifically found that the Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. A December 2017 VA treatment record shows a negative straight raise test and noted that there was “absence of radiating numbness/tingling into lower extremities.” The Veteran underwent a VA examination for his back disability on March 26, 2018. That examination was also the basis for originally the grant of separate ratings for bilateral lower extremity radiculopathy, as neurological complication of his back disability. Prior to the examination, the record showed that there were no radicular symptoms present. At the examination, the Veteran reported radicular symptoms bilaterally. The findings on examination were as follows. Sensory examination was normal throughout. Straight leg raising test was positive on the right side, negative on the left side. There was radicular pain due to radiculopathy in both lower extremities. He had moderate intermittent pain and moderate paresthesias and/or dysesthesias bilaterally. He did not have constant pain or numbness in either lower extremity. The examiner noted that there were no other signs or symptoms of radiculopathy. There was involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve). The examiner stated that the severity of radiculopathy was moderate on both affected sides. There were no other neurologic abnormalities. His reflexes were normal (2+) for both the knee and ankle regions. Muscle strength testing was normal with regard to hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. There was no muscle atrophy. A July 2019 VA treatment record noted pain that radiated to the back of the Veteran’s left thigh. Subsequently on a September 2019 VA re-examination, there were updated findings provided as to overall neurological condition. A sensory exam was normal throughout. Muscle strength testing was 5/5 throughout. There was no muscle atrophy. The Veteran was unable to complete a straight leg raising test. On objective findings as to presence of any radicular pain, there was moderate indication of constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness that affected both lower extremities. There were no other neurologic symptoms or findings. The overall severity of the condition was estimated at moderate level bilaterally. On the whole however there was not indication of any signs of other sensory involvement, limitation in motor function, or general symptomatology or pathology outside of sensory level. The radiculopathy was described as moderate at two VA examinations, and none of the symptoms listed were described as severe. For these reasons, the preponderance of the evidence weighs against the claim and accordingly it is being denied. 5. The claim for an evaluation greater than 10 percent for right knee limitation of flexion prior to September 27, 2019, and greater than 20 percent, thereafter, is denied. . 6. A 10 percent rating for right knee limitation of extension, since March 26, 2018, is granted. 7. The claim for a rating higher than 10 percent for right knee lateral meniscus tear is denied. Under pertinent VA rating provisions, Diagnostic Code 5260 provides for a 10 percent rating when flexion is limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides that limitation of knee motion will be assigned a 10 percent evaluation when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating requires extension limited to 20 degrees. A 40 percent rating requires extension limited to 30 degrees. A 50 percent rating requires extension limited to 45 degrees. Id. The normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Apart from ratable limitation of motion, pursuant to Diagnostic Code 5257, “other” knee impairment is evaluated based upon recurrent subluxation and/or lateral instability. This Diagnostic Code provides that a 10 percent disability rating is warranted for slight disability, a 20 percent rating is warranted for moderate disability, and a maximum 30 percent evaluation is warranted for severe disability. Under Diagnostic Code 5258, a single 20 percent rating applies for dislocated semilunar cartilage, with frequent episodes of “locking,” pain and effusion into the joint. Under Diagnostic Code 5259, a single 10 percent rating applies for removal of the semilunar cartilage, symptomatic. Further relevant for consideration, the case holding in Lyles v. Shulkin, 29 Vet. App. 107 (2017) expressly indicated that evaluation of a knee disability under Diagnostic Codes 5257 or 5261 or both did not, as a matter of law, preclude a separate evaluation of a meniscal disability of the same knee pursuant to DC 5258 or 5259. The basis for that holding, moreover, was that entitlement to a separate evaluation “in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different [diagnostic code].” Id. at 109. In the absence of duplicative compensation, there would not have been considered to have occurred pyramiding. Based on comprehensive review of the evidence, the Board finds that the record does not substantiate any increase for level of compensation for the service-connected right and left knee conditions. According to the current VA compensation scheme there is in effect as follows: 10 percent for right knee limitation of flexion (previously, right knee impairment), rated 10 percent from January 17, 2017 to September 26, 2019, and 20 percent from September 27, 2019 onwards; next, a 10 percent rating for right knee limitation of extension, since March 26, 2018; a 10 percent rating for right knee lateral meniscus tear since July 26, 2013. In looking at the evidence relevant to the claims the Board considers these three different components of service-connected disability. On VA examination in November 2013 for a knee condition, the diagnoses at outset were knee strain, lateral meniscus tear, degenerative joint disease. Range of motion was 0 to 130 degrees right side. He did not have pain during flexion, and pain began at 25 degrees during extension, but he was able to fully extend his knee. There was no change in range of motion after repetitive motion testing. He denied flare ups. There was no worsening of condition, severity or joint mobility when factoring in any additional form of recognizable functional loss, such as pain, weakness, fatigue, instability. His strength was 4/5 (active movement against some resistance) for both flexion and extension. Functional impairment consisted of less movement than normal, weakened movement, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing, this being mostly on the right side. Joint stability testing was normal, and there was no evidence or history of recurrent patellar subluxation and/or dislocation. There was a history of a right side meniscal injury, without residual signs or symptoms. There was not a history of any treatment measures notated. There had not been a meniscectomy. The Veteran had degenerative arthritis. On VA examination again in January 2017, the Veteran reported having had right knee pain and swelling. There were flareups of the right knee that occurred about twice a year lasting for days. Swelling would be noted and he would avoid putting too much weight on the right knee. Range of motion consisted of from 0 to 110 degrees. There was functional loss due to factors such as pain on use. There was evidence of pain on weightbearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. This was described as having been located by the medial and lateral aspect of the right knee. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions. This caused additional loss of joint mobility, measured at 5 to 90 degrees. During a flare-up this was indicated to worsen to 10 degrees of extension to 45 degrees of flexion. There was pain on passive range of motion testing as well as in non-weight bearing use. Otherwise muscle strength testing was normal. There was no history of recurrent subluxation. There was a history of slight right knee instability. The specific joint stability tests with exception of one were all normal, that exception being 1+ lateral instability. There was a history of recurrent effusion. There were two episodes where arthrocentesis was done to remove fluid from the right knee. The Veteran had not ever had recurrent patellar dislocation or shin splints. There was a history of meniscal tear and frequent episodes of joint pain. X-ray evidence of degenerative arthritis was present. Also shown was joint synovitis. According to the examiner there was a marked affect upon joint mobility and ambulation. On re-examination March 2018, the Veteran described having had flare-ups in terms of intermittent episodes of increased right knee pain. There was constant right knee pain exacerbated by activities involving weight bearing and knee range of motion. Initially range of motion testing showed results of 10 to 80 degrees. The Veteran reported further diminution of joint mobility as due to again having ongoing functional loss and associated factors, and stating there was further limitation upon weightbearing. Muscle strength was 5/5. Reflexes were 5/5. There was no muscle atrophy. There was not ankylosis. Joint stability testing was normal. The Veteran had a history of a meniscal condition, with on the right side the presence of meniscal tear and frequent episodes of joint pain. Degenerative arthritis was indicated by x-ray. Also indicated was chondrocalcinosis. On examination again September 2019, the diagnosis at outset was right side knee meniscal tear, knee strain, knee impingement, and inflammatory arthritis condition of gout. The Veteran reported flare-ups of the right knee occurred twice year, they involved pain and swelling, they lasted a week. Flare-ups were precipitated by walking and alleviated by rest over time. The Veteran did not report any functional loss. His flexion was 30 degrees and his extension was 5 degrees. The examiner was unable to estimate what his ranges of motion would be during a flare up or after repeated use over time. But the examiner explained why this was the case. He explained, “[t]he claimant could not reliably determine and demonstrate ROM loss during a flare up or after repetitive usage. Medical records did not identify previous flare ups or after repetitive usage where there was a loss of ROM. General medical knowledge of the claimant’s joint condition is insufficient to reasonably estimate ROM for each plane of motion as there is great variability between claimant’s with similar conditions.” The examiner explained, “[t]he right knee passive range of motion testing was not performed as it was not medically appropriate because to[o] painful. There was pain on non weightbearing. There were no additional contributing factors of disability. Muscle strength testing was normal. There was no muscle atrophy. There was not joint ankylosis. The examiner stated that there was no history of recurrent subluxation or lateral instability, and stability tests were normal. The Veteran did not have patellar dislocation, shin splints, chronic exertional compartment syndrome or other tibial or fibular impairment. According to this examination report there had not ever been any form of meniscus condition. There were no other pertinent physical findings, complications, conditions, signs or symptoms associated with the service-connected right knee disability. The Veteran used a cane, walker, and motorized scooter. The examiner stated that these were due to both back and knee pain. There was no change in diagnosis from previous medical examinations for this condition. With application of these VA rating standards, considering all three components of service-connected right knee disability, there is objective support for a partial increase in VA compensation benefits. First, as to limitation of motion in the plane of knee flexion, objective findings basically followed the criteria for that already awarded. At the September 2019 VA examination there was demonstrated notable worsening in severity, his flexion was 30 degrees, however, nothing prior close to that finding and so warranting 20 percent for limitation of knee flexion. Likewise nothing meeting the standard for 30 percent per Diagnostic Code 5260, because flexion was not limited to 15 degrees. Second, his knee extension was 10 degrees at his March 2018 VA examination. A 10 percent rating is granted since then for separately ratable impairment in the plane of knee extension. VAOPGCPREC 9-2004 (September 17, 2004). As to further right knee condition symptoms and findings due to a cartilage condition, a reasonable and supported interpretation of the VA rating criteria does not show additional requirements being met for an increase based on Diagnostic Code 5258. Although the March 2018 VA examiner noted that the Veteran had frequent episodes of joint pain, he is already being compensated for pain of the right knee joint. There were no episodes of locking or effusion into the joint to warrant a rating under Diagnostic Code 5258. Additionally, he had a meniscal tear, but has not had removal of the semilunar cartilage. The Veteran has a 10 percent rating for other impairment of the right knee under Diagnostic Code 5257. This was based on the finding at the March 2018 VA examination that the Veteran had a history of slight lateral instability of the right knee and an abnormal lateral instability test of 1+ (0-5 millimeters). He does not have a history of recurrent subluxation. Additionally, his anterior, posterior, and medial instability tests were normal. The September 2019 VA examiner found that there was no instability. The lay evidence of record does not describe the severity of his instability of the right knee. A 20 percent rating is not warranted because the instability is not moderate. For these reasons, the Board finds that a partial increase in compensation is warranted to the extent indicated, specifically for the condition of right knee limitation of motion in the plane of knee extension. The two additional components of limitation of motion in the plane of knee flexion, and any knee cartilaginous condition do not warrant any increase in rating at this time. The preponderance of the evidence supports this outcome, and VA’s benefit-of-the-doubt doctrine applies to the extent indicated. See 38 C.F.R. § 4.3. 8. The claim for a TDIU prior to March 26, 2018 is denied. Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the individual is unable to secure and maintain substantially gainful employment because of the severity of her service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). Provided a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of service-connected disabilities. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. If the record supports the claim, the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is “[in]capable of performing the physical and mental acts required by employment,” and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes the situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id.; see also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to cause unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In addition, “marginal employment” shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Where the claimant’s working capacity might be limited to “marginal employment,” the question of whether marginal employment must be addressed including where the Veteran is not presently employed. See Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Presently, following recent VA Regional Office (RO) adjudication of the claim for TDIU, that benefit was granted effective from March 26, 2018. While this granted the benefit sought in substance, there remains for VA purposes and for sake of comprehensiveness the issue of entitlement to the same for the time period before March 26, 2018. Initially, the TDIU was granted on the basis of first meeting the preliminary schedular requirements for that benefit found at 38 C.F.R. § 4.16(a), and medical evidence that included an opinion which stated there was significant limitation on different types of occupations that was attributable to the service-connected back and right knee conditions, and including consideration of other previously adjudicated service-connected conditions. The March 2018 VA examiner’s opinion indicated in relevant part, “These symptoms would impair the performance of both physical and sedentary (desk work) occupational/employment activities.” The Board considers a timeframe prior to receipt of a formal TDIU claim as well, because a TDIU was part and parcel of the pending claims for increased ratings for right knee and back disorders, those claims now the basis for the present appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The January 2017 VA examination report for both the back condition and the knees/lower leg condition stated as to occupational capacity, that as a result of the service-connected bilateral knee condition that mobility and ambulation were “markedly affected.” Due to service-connected hearing loss and tinnitus the Veteran had difficulty hearing conversations and what he described as annoying level of ringing in the ears. A March 2017 VA examination report stated as to adjudicated service-connected kidney stones (according to decision previously), the ability to work was affected because of the pain associated with kidney stones. On a March 2017 VA Medical Center (VAMC) vocational rehabilitation consult the Veteran indicated he was looking for work after reportedly being out of work for 18 years due to physical issues, further stated he was looking for a sedentary job and wanted to locate a good desk job, stating he wanted to avoid a few fields and had some transferable skills. He was given resources and information on where to go to further apply. An August 2017 VA vocational rehabilitation counseling report indicated the conclusion that the Veteran was eligible for training. The report stated “Given the information from the evaluation process it is likely that given the appropriate services the Veteran will succeed in obtaining and maintaining employment. He is currently engaged in treatment at the VAMC.” According to a September 2017 VA examination, the kidney condition did not impact ability to work. The November 2017 VA examination report stated hearing loss and tinnitus did not impact ability work. The December 2017 formal TDIU application from the Veteran stated the he last worked in 2002 full time then as a truck driver, he stated he was unemployable because of the back and right knee conditions. The formal application provided indicated that his education consisted of completing one year of college. Based on the above evidence and findings, the Board cannot conclude that the key requirements for TDIU were met prior to March 26, 2018. Without question there was notated one or more forms of physical impairment and symptomatology here due to service-connected disability. However, the VA vocational records indicate that with support, he had the ability to learn skills to obtain a job in the medical field such as a radiology or EKG technician, which was consistent with his interests and would not involve the activities he cannot do such as physical labor, heavy lifting, bending, stopping, climbing, and walking long distances. The TDIU effective date is March 26, 2018 and there does not appear support for any earlier rating in that capacity. Accordingly, the preponderance of the evidence weighs against this claim. VA’s benefit-of-the-doubt doctrine does not apply and the claim is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.