Citation Nr: 21004320 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-10 258 DATE: January 26, 2021 ORDER Entitlement to an initial disability rating higher than 10 percent for degenerative arthritis of the left knee, for the period March 15, 2010 to October 14, 2011 is denied. Entitlement to an increased evaluation of 60 percent, from December 1, 2012, with the exception of the periods of temporary total rating, for left knee replacement is granted. Entitlement to a separate, 10 percent rating for left knee meniscus repair residuals is granted for the period March 15, 2010 to October 14, 2011. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the initial period of March 15, 2010, to October 14, 2011, the Veteran’s left knee disability was productive of pain, but did not more nearly approximate limitation of flexion to 45 degrees, limitation of extension to 10 degrees, recurrent subluxation, lateral instability, or ankylosis. 2. On October 14, 2011, the Veteran underwent a partial left knee replacement. 3. For the period December 1, 2012 through December 8, 2015, the Veteran’s left knee disability manifested chronic residuals consisting of severe painful motion or weakness. 4. On December 9, 2015, the Veteran underwent a total left knee replacement. 5. For the period February 1, 2017, through February 15, 2017, the Veteran’s left knee disability manifested chronic residuals consisting of severe painful motion or weakness. 6. On February 16, 2017, the Veteran underwent a revision of the left knee replacement. 7. For the period from April 1, 2018, the Veteran’s left knee disability manifested chronic residuals consisting of severe painful motion or weakness. 8. For the initial period of March 15, 2010, to October 14, 2011, the Veteran has a symptomatic left knee medial meniscus injury, status-post arthroscopy with meniscus and cartilage operation, which is associated with his other service-connected left knee disability. 9. The evidence shows that the Veteran’s service-connected disabilities preclude him from following a substantially gainful occupation. CONCUSIONS OF LAW 1. The criteria for the assignment of an initial rating higher than 10 percent for the service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260, 5261. 2. For the period December 1, 2012 through December 8, 2015, the criteria for the assignment of a disability rating of 60 percent for the left knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DC 5055. 3. For the period February 1, 2017 through February 15, 2017, the criteria for the assignment of a disability rating of 60 percent for the left knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DC 5055. 4. For the period from April 1, 2018, the criteria for the assignment of a disability rating of 60 percent for the left knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DC 5055. 5. For the period March 15, 2010 to October 14, 2011, the criteria are met for a separate 10 percent disability rating, but no higher, for a left knee medial meniscus injury. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. 6. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1975 to May 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. In July 2019, the Board issued a decision denying entitlement to increased evaluations for his left knee. He appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court vacated the Board’s denial, and remanded the issue to the Board pursuant to a Joint Motion for Partial Remand (JMPR). 1. Entitlement to an initial disability rating higher than 10 percent for degenerative arthritis of the left knee, for the period March 15, 2010 to October 14, 2011 is denied. In the original rating decision on appeal, in March 2014 the RO granted the Veteran a 10 percent evaluation from March 15, 2010, and a temporary 100 percent evaluation from October 14, 2011, based on surgical or other treatment necessitating convalescence, with the 10 percent evaluation reinstated from February 1, 2012. The Veteran filed a notice of disagreement. In January 2016, the RO issued a rating decision assigning another temporary 100 percent evaluation effective December 9, 2015. This was based on the date of replacement surgery, in effect to January 31, 2017, the last day of the month following a one-year 100 percent rating following implantation of the prosthesis. A 30 percent evaluation was then assigned February 1, 2017. In March 2017, the RO granted entitlement to a temporary total evaluation of 100 percent for the left knee effective February 16, 2017, with a 30 percent reinstated April 1, 2018. The 100 percent was assigned based on implantation of the prosthesis. In April 2019, the RO issued a decision granting a temporary 100 percent evaluation for the left knee effective October 14, 2011 through November 30, 2012, and a 30 percent evaluation from December 1, 2012. The Veteran’s left knee is evaluated as follows: 10 % March 15, 2010 100% October 14, 2011 30% December 1, 2012 100% December 9, 2015 30% February 1, 2017 100% February 16, 2017 30% April 1, 2018 As such, the issues on appeal are entitlement to an evaluation higher than 10 percent from March 15, 2010, and higher than 30 percent from December 1, 2012, with the exclusion of the periods of temporary 100 percent evaluations. The Board notes that during the duration of the appeal the Veteran has argued that he should be evaluated under DC 5055, and be awarded a temporary 100 percent evaluation for the year following the initial operation of October 14, 2011. The Veteran is now in receipt of temporary total evaluations for a year following the October 2011, December 2015, and February 2017 operations, under DC 5055, as such these periods of temporary total evaluation are considered resolved and not before the Board. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Code for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003-5014. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Codes 5260 and 5261 pertain to limitation of knee motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. In this regard, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. Evaluations for knee impairment can also be assigned due to ankylosis, tibia and fibula impairment, or genu recurvatum, but as the Veteran has not at any time been found to have ankylosis, tibia and fibula impairment, or genu recurvatum, these diagnostic codes are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Under Diagnostic Code 5259, a 10 percent rating can be assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. Under Diagnostic Code 5258, a 20 percent evaluation can be assigned for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. A veteran may also receive a separate evaluation for recurrent subluxation or lateral instability under Diagnostic Code 5257, which can be rated as slight (10 percent), moderate (20 percent) or severe (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. VA General Counsel has held that a Veteran who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14. However, any such separate rating must be based on additional disabling symptomatology. Additionally, under 38 C.F.R. § 4.59, it is the intention of the rating schedule to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint. This applies even if arthritis is not shown. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. VA regulations state if a claim for evaluation of a partial knee replacement was filed prior to July 16, 2015, and the claim is still pending, the case must be evaluated under diagnostic code 5055 as a total knee replacement. The appeal for evaluation of the left knee disability has been pending since May 2014. Therefore, following the initial October 2011 operation, the left knee is properly evaluated under DC 5055. Entitlement to an initial evaluation higher than 10 percent from March 15, 2010. The Veteran was granted service connection with an initial evaluation of 10 percent under Diagnostic Code 5260. Diagnostic Code 5260 provides a noncompensable rating for limitation of flexion to 60 degrees, a 10 percent rating for limitation of flexion to 45 degrees, a 20 percent rating for limitation of flexion to 30 degrees, and a 30 percent rating for limitation of flexion to 15 degrees. A statement from Dr. C. of the Bone and Joint Center of Metairie from February 2010, notes the Veteran had arthritis in his knee. Treatment reports from the Pontchartrain Bone and Joint Clinic from 2002 through 2008 reveal that in September 2007, he was seen with complaints of left knee pain. Examination noted varus deformity, effusion, but range of motion was good. He had medial joint line tenderness, and in November 2009 he underwent a partial medial meniscectomy of the left knee. Based on the above, the Board finds that there is no basis to grant an increased rating based on limitation of flexion. There was limitation in range of motion, but no indication that flexion was limited to 30 degrees to warrant a 20 percent rating, or extension limited to 15 degrees, to warrant a 20 percent rating. Diagnostic Code 5260 and Diagnostic Code 5261. Regarding instability, there is no probative evidence the Veteran suffered from instability or subluxation in the left knee during this period on appeal. As such, there is no basis to assign a separate rating based on instability. Diagnostic Code 5257. As to meniscal conditions, the Board acknowledges that the Veteran had a left knee meniscectomy in 2009. Diagnostic Code 5259 assigns a 10 percent rating for symptomatic removal of semilunar cartilage. No other rating is available under this code section. Resolving any doubt in his favor, a separate 10 percent rating under Diagnostic Code 5259 for a left knee medial meniscus injury, is warranted. 38 C.F.R. § 4.3. The Veteran’s joint line tenderness over the medial part of his left knee is considered to be distinct and separate symptomatology separately ratable from his left knee DJD. The 10 percent rating assigned here is the maximum rating available under Diagnostic Code 5259. It follows that by law, the Veteran cannot be entitled to a higher rating under this diagnostic code. The Veteran is being granted a separate evaluation under DC 5259 for the initial period from March 15, 2010 to October 14, 2011. As is explained further below, as a result of being granted entitlement to a maximum evaluation of 60 percent under DC 5055, entitlement to a separate evaluation under DC 5259 is barred, hence why the period of entitlement is limited to the initial period cited above. Though there is a mention of effusions in 2007, there is no probative evidence that the knee exhibited dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint. As such, a separate rating under Diagnostic Code 5258 is not warranted. The Board has considered the Veteran’s lay statements regarding the functional impact of his knee disability. The Veteran is competent to report his own observations with regard to the severity of his disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). His statements are consistent with the rating assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran’s medical records. To the extent that the Veteran argues his symptomatology is more severe than shown on evaluation, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions. The Board acknowledges that the evidence, including the Veteran’s lay statements indicate that he has chronic knee pain and has considered 38 C.F.R. § 4.59 regarding painful motion. Under 38 C.F.R. § 4.59, with any form of arthritis, actually painful joints are entitled to at least the minimum compensable rating. See also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) (“Under 38 C.F.R. § 4.59, the trigger for a minimum disability rating is an ‘actually painful, unstable, or malaligned joint [].’“). In this case; however, the Veteran has already been assigned at least the minimum compensable rating, 10 percent, for his left knee for the initial period of March 15, 2010, to October 13, 2011, and now a separate 10 percent evaluation for symptomatic removal of semilunar cartilage. See Petitti, 27 Vet. App. at 425. The 10 percent evaluation already considers the Veteran’s limitation of motion hampered by pain, repetitive motion, and flare ups, as these symptoms were evaluated on examination to the extent feasible. The Court has established that flare-ups must be considered. However, guidance on how to evaluate flare-ups has not been particularly clear. Therefore, this Veterans Law Judge expands upon the wisdom advanced in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. Here, for the period under review there are no reports of flare-ups, thus a higher evaluation is not warranted. The preponderance of the evidence is against an increased initial evaluation under DC 5260 or an additional separate rating under any other Diagnostic Code. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against assignment of any other higher ratings, it is not applicable. 38 U.S.C. § 5107. 2. Entitlement to an increased evaluation higher than 30 percent from December 1, 2012, with the exception of the periods of temporary total rating, for left knee replacement In October 2011, the Veteran underwent a left knee medial unicompartmental arthroplasty. He was discharged on October 20, 2011 to physical therapy and was released back to work on January 9, 2012. He was in receipt of a temporary 100 percent evaluation from October 14, 2011 through November 30, 2012. In December 2012, the Veteran underwent an examination. He was diagnosed with chondromalacia patella and degenerative arthritis. He complained of pain on a daily basis, at times sharp, then burning and throbbing. He reported flare-ups of pain that result in him missing work about once per month. Range of motion testing revealed flexion to 90 degrees with pain, and extension to 0 degrees. Following three repetitions his flexion was to 85 degrees, and extension to 0. Functional loss and impairment were less movement than normal and pain on movement. He had tenderness or pain to palpation of the joint. Muscle strength testing revealed normal strength of flexion, and active movement against some resistance for extension. Joint stability testing was normal. There was no evidence of recurrent patellar subluxation or dislocation. He had a left knee meniscectomy in 2009. He had a left partial knee replacement in 2009, with residuals of pain and swelling as well as limited movement. He had a left knee scar. X-rays revealed degenerative arthritis. The functional impact was described as after standing 15 minutes, he begins to have left knee pain. April 2014 records note the Veteran had left knee extension to 5 degrees, and flexion to 90 degrees. A June 2014 treatment record notes that the Veteran injured his left knee stepping off a curb, he had medial joint line tenderness. He had full range of motion of the left knee without instability. In November 2015, he was assessed as having a loosening of the total knee replacement. On December 9, 2015, he underwent a total left knee replacement. Again, he is in receipt of a temporary 100 percent evaluation from December 9, 2015, through January 31, 2017. In January 2017, the Veteran underwent a VA examination. He had an arthroscopy in 2009, and partial knee replacement in 2011, and a total knee replacement in December 2015. Hardware was removed in December 2016, and he had spacer in the joint. He was scheduled for a knee replacement in February 2017. Functionally, he could stand and walk for approximately ten minutes, but no more. Range of motion testing revealed flexion to 80 degrees, and extension to 22 degrees. Pain was noted on examination and it caused functional loss. He had pain with weight bearing, and objective evidence of localized tenderness or pain on palpation of the joint. There was no evidence of crepitus. He could perform repetitive use testing with at least three repetitions, with no additional functional loss or loss of motion. Pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time. Flare-ups were not reported. He had disturbance of locomotion and interference with sitting and standing. There was a reduction in muscle strength to active movement against some resistance. There was no evidence of muscle atrophy or ankylosis. He had no history of recurrent subluxation, but did have a history of lateral instability. There was no history of effusion. He never had recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. He had a history of a left side meniscal tear and subsequent knee surgeries. Meniscal residuals were pain and the previously described limitation of motion. The functional impact was described as limitations in standing, walking, and being unable to squat or climb. He had pain on passive range of motion, and evidence of pain when the joint was used, non-weight bearing. The opposing joint was undamaged. The examiner then stated that it is not feasible to produce an opinion about how pain, incoordination, weakness, or fatigability could be limiting functional ability. In February 16, 2017, he underwent a revision of the total left knee replacement. A 100 percent evaluation was in place from February 16, 2017, through March 31, 2018. The 100 percent evaluation was properly in place from February 16, 2017, and continued for 13 months following implantation of the prosthesis. In April 2018, he underwent an examination. Range of motion testing revealed flexion 90 degrees, and extension to 0 degrees. There was no objective evidence of localized tenderness or pain on palpation of the joint or soft tissue. There was no evidence of pain with weight bearing or any crepitus. There was no additional loss of function or range of motion after three repetitions. He was not examined immediately after repetitive use over time, or during a flare-up, and the examination was deemed neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss. As for flare-ups, no flare-ups were reported. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal, and he had no muscle atrophy. There was no evidence of ankylosis. Joint stability testing was normal. He had a total knee joint replacement in December 2016, and arthroscopic hardware removal. He has degenerative arthritis. The functional impact was described as being unable to use stairs, inability to run, and being unable to walk for long distances. There was no objective evidence of pain when the left knee was used in non-weight bearing. Passive range of motion of the left knee was the same as active range of motion. There was no objective evidence of pain on passive range of motion testing. In an April 2019 statement, the Veteran alleged the April 2018 examination did not accurately reflect the information he discussed with his doctor. The JMPR instructed that the Board discuss whether the April 2018 VA examination is adequate. In the April 2019 statement, the Veteran reported that at the 2018 examination he did, in fact, report flare-ups, and pain in his knee. He reported pain and weakness with repeated use of his knee, and difficulty bending his knee. The Board does not find any indication, and there is no evidence from the Veteran or in the examination itself that the 2018 examination was inadequate. However, the Board will take into account and accept as true, the Veteran’s reports of flare-ups, and pain, weakness with repeated use, and difficulty bending. In March 2019, he underwent an examination. His left knee range of motion was 0 to 90 degrees, with pain. The Veteran used a cane to ambulate. He had tenderness to the anterior left knee. There was no additional loss of function or range of motion after three repetitions. He was not immediately examined following repetitive use over time. The exam was deemed neither medically consistent nor inconsistent with the Veteran’s statement describing functional loss with repetitive use over time. The examiner was unable to stay without speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time, or during a flare-up. The rationale was there is no conceptual or empirical basis of making such a determination without directly observing function under those conditions, and there is a lack of supporting objective documentation in the file. Muscle strength testing was reduced to 4 out of 5. There was no evidence of ankylosis, subluxation, instability, or effusion. Joint stability testing was not tested as the Veteran reported severe pain in his left knee. There was no evidence of patellar dislocation, shin splints, fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. As far as a meniscus condition, the Veteran reported frequent episodes of joint pain. There was objective evidence of pain on passive range of motion testing and evidence of pain when the joint was used in non-weight bearing. In October 2020, the Veteran underwent an examination, and was diagnosed with degenerative arthritis status-post left total knee replacement. He reported flare-ups of the left knee that are moderate to severe in severity, that are precipitated by overuse. He reported flare-ups that last a few hours, and are alleviated by rest and medication. He reported functional impairment of the joint as a result of long periods of walking, standing, sitting, kneeling and squatting. He stated he must take frequent rest breaks when doing any of these activities. Range of motion testing revealed flexion 0 to 45 degrees with pain, and extension 45 to 0 degrees. Pain noted on examination causes functional loss. He had pain in flexion. There was objective evidence of localized tenderness or pain on palpation of the joint, located at the medial and lateral knee, moderate in nature. There was evidence of pain with weight bearing. There was no evidence of crepitus. Following three repetitions there was no additional loss of function or range of motion. Pain and fatigue significantly limited functional ability with repeated use over time and during a flare-up. In terms of range of motion, the examiner described it as: flexion 0 to 35 degrees and extension 35 to 0 degrees. There was no swelling, deformity, instability of station, disturbance of locomotion, or interference with sitting or standing. There was four out of five muscle strength, indicative of active movement against some resistance. There was no evidence of ankylosis, subluxation, instability, or effusions. Joint stability testing was conducted, and the results were normal, with no findings of instability. The Veteran had a total knee joint replacement, with chronic residuals of severe painful motion or weakness. He had a meniscectomy in 2009. He has a left medial scar and left lateral knee scar, each measuring 0.5cm by 0.1cm. The examiner indicated his conditions impacted his ability to perform occupational tasks, stating that the Veteran was limited in walking, kneeling, crawling, squatting, prolonged standing, or prolonged walking and high impact activities. He had pain on passive range of motion testing, non-weight bearing testing. The examiner stated the Veteran’s left knee condition causes him to have constant pain and makes it difficult for him to get comfortable standing or sitting for prolonged periods of time. Following the October 14, 2011, unicompartmental arthroplasty, the Veteran’s left knee was rated under DC 5055. After reviewing the evidence of record, the Board finds that an increased rating of 60 percent is warranted. In support of this determination, the Board first notes that, under Diagnostic Code 5055, a 60 percent rating may only be assigned if a veteran experiences chronic residuals consisting of severe painful motion or weakness in the affected lower extremity. In Tedesco v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held that severe painful motion in the criteria for a 60 percent rating under Diagnostic Code 5055 is not synonymous with limitation of motion. 31 Vet. App. 360, 365-66 (2019). Rather, limitation of motion is but one factor that may be considered in evaluating whether severe painful motion is present for evaluative purposes. Id. at 366. Based on the symptoms summarized above and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the period since December 1, 2012, his left knee symptoms more closely approximated the criteria for a rating of 60 percent under DC 5055. More specifically, the Board finds that the evidence shows the functional equivalent of chronic severe painful motion. The record during this time period contains numerous VA treatment records reflecting complaints of severe pain and resultant functional impact in the Veteran’s left knee. The Veteran had a left medial unicompartmental arthroplasty in October 2011. At the December 2012 examination, he complained of pain on a daily basis, sharp, burning and throbbing. He reported flare-ups that result in him missing work. After standing 15 minutes he would begin to experience and increase in pain. In November 2015, he was assessed with a loosening let knee replacement, and in December 2015, he underwent a total knee replacement. In December 2016, the hardware was removed, and spacers were placed in the left knee joint. Upon examination in January 2017, his flexion was to 80 degrees, and extension was limited to 22 degrees. There was reduction in muscle strength, and even though there was no evidence of subluxation, he did have some history of lateral instability. In February 2017, he underwent a revision of the left total knee replacement. On examination in April 2018, he had flexion to 90 and extension to 0. In an April 2019 statement, the Veteran stated that he experienced flare-ups of pain, weakness, and difficulty bending. On examination in March 2019 he had tenderness to the knee, and pain with range of motion. The 2020 examiner found the Veteran to have chronic residuals of the knee replacement of severe painful motion or weakness. The Veteran had pain on passive range of motion testing and in-non weight bearing. He had constant pain making it difficult to get comfortable sitting or standing. Significantly, despite undergoing surgery in 2011, the evidence of record clearly reflects that the Veteran’s condition never improved, and he underwent revisions of the left knee operation in 2015 and again in 2017. The Board finds the evidence supports a 60 percent rating for residuals of a left knee replacement, from December 1, 2012. See 38 C.F.R. § 4.71, Diagnostic Code 5055. A 60 percent rating is the highest rating available under DC 5055. Thus, to the extent applicable, the considerations of DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), do not apply. See Johnston v. Brown, 10 Vet. App. 80 (1997). Having found the Veteran is entitled to a rating of 60 percent for the period since December 1, 2012, the Board need not consider whether higher or separate ratings are warranted; as DC 5055 in VA’s rating schedule pertains specifically to evaluations of total knee replacement disabilities, the Veteran’s disability will not be rated by analogy to any of the other diagnostic codes. Copeland v. McDonald, 27 Vet. App. 333, at 337 (2015). Even if it were possible to rate by analogy, the Veteran’s left knee disability would remain at 60 percent. Other than the assignment of a temporary 100 percent evaluation for one year following the implantation of a prosthesis, a 60 percent disability rating is the highest rating that can be assigned pursuant to the eight diagnostic codes applicable to the evaluation of knee and leg disabilities, in addition to the six diagnostic codes for rating disabilities involving prosthetic implants. See 38 C.F.R. § 4.71a , DCs 5256 to 5263 and 5051 to 5056. The Board notes that DC 5055 suggests rating intermediate degrees of symptoms by analogy under 5256, 5261, or 5262. The Board also recognizes that the Veteran’s left knee has caused him pain and impacts his ability to engage in certain physical activities, but this is contemplated by the assigned 60 percent disability rating, and, as stated above, the Veteran is in receipt of the maximum rating for the residuals of his disability and to rate intermediate degrees of symptoms under 5256, 5261, or 5262 would only allow for a 30 percent rating. Further, the Board notes that the “amputation rule” precludes the Board from assigning the Veteran a rating higher than 60 percent or any further separate ratings. The “amputation rule” provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. See 38 C.F.R. § 4.68. A 60 percent rating is provided for an amputation of the thigh, above the knee, at the middle or lower third. See 38 C.F.R. § 4.71, DCs 5162, 5163, 5164. Because the Veteran’s disability is in the knee, or below the middle third of the thigh, the amputation rule precludes a schedular evaluation in excess of 60 percent. Accordingly, the Board will not consider whether the Veteran is entitled to receive a higher and/or additional evaluation for his left knee disability as of December 1, 2012. And for these aforementioned reasons, the separate evaluation of 10 percent under DC 5259 is not permitted to continue as of December 1, 2012. As such, resolving reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise on whether the left knee disability had chronic residuals that manifested as severe painful motion or weakness in the affected extremity following the convalescent periods. As such, the Board finds a 60 percent disability rating under DC 5055 is warranted from December 1, 2012. Finally, the Board notes that the Veteran’s post-operative left knee scar has been awarded a separate 10 percent evaluation by the RO under DC 7804, and a noncompensable evaluation under DC 7805. Entitlement to an increase of 20 percent under DC 7804 requires three or four unstable or painful scars, of which there is no indication of in this appeal. As for the evaluation under DC 7805, the Board finds that a compensable evaluation is not warranted as there is no evidence of impairment associated with the scar. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran asserts he is unable to work as a result of his service-connected disabilities. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. Although the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a). In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, neither the Veteran’s nonservice-connected disabilities nor advancing age may be considered. The Veteran is service connected for somatic symptom disorder with a 30 percent from March 26, 2013 and a 70 percent from December 12, 2019; posttraumatic headaches with a 30 percent evaluation from October 16, 2015, left knee disability with a 10 percent evaluation from March 15, 2010 and a 60 percent from December 1, 2012, left shoulder bruise with a 20 percent evaluation from March 26, 2013; scar left knee with a two percent from February 1, 2012, left wrist with a 10 percent from March 7, 2012, residuals of TBI with a 10 percent evaluation from March 26, 2013 to December 10, 2019, left elbow bursitis with a 40 percent from March 26, 2013 and 10 percent from February 24, 2020, erectile dysfunction with a noncompensable evaluation, and left knee scar with a noncompensable evaluation. The Veteran has a combined rating of 80 percent, effective December 1, 2012. His evaluations did change following this date, however taking into account the 60 percent evaluation effective as of December 1, 2012, he continues to meet the criteria for the entirety of the period on appeal. As will be explained below, the Veteran did not cease working until March 2020, therefore, for all intents and purposes the period of primary concern is that following the date of his last employment. The Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU based on his service-connected disabilities. The Veteran completed a VA Form 21-8940 in June 2020. He reported working from May 2014 through March 2020 in service maintenance. He indicated his left knee and somatic symptoms disorder have prevented him from securing or following a substantially gainful occupation. He had worked full time from April 2018 to March 2020 in maintenance at Hyatt Regency. He worked for Tennessee Narcotics testing from March 2015 to September 2019, and was paid per ship that he serviced. He reported walking or standing for more than 15 to 20 minutes at a time causes tremendous pain in his knees, and sitting for extended periods becomes uncomfortable. A completed VA Form 21-4192 was received July 2020. His former employer, Hyatt Regency, explained the Veteran had been employed as on a full-time basis as a general maintenance engineer since April 2018. The Veteran missed three to five hours a week of employment due to disability. The last date of employment was March 16, 2020, with reason explained as being laid off due to Covid-19 pandemic. In a completed 21-4192 received July 2020, the employer Tennessee Narcotic Testing, explained the Veteran had worked from March 2015 through November 2019, performing drug testing. It was noted the number of hours work varied, and the time lost due to disability was not applicable. He did not work on a weekly or hourly basis. He was paid per ship when he went on board to drug test crew members. The reason cited as to why he was no longer working was that the Veteran has knee problems. The October 2020 examination found the Veteran to have severe chronic residuals of his left knee, with his condition impacting his ability to perform occupational tasks, stating that the Veteran is limited in walking, kneeling, crawling, squatting, prolonged standing, or prolonged walking and high impact activities. The examiner stated the Veteran’s left knee condition causes him to have constant pain and makes it difficult for him to get comfortable standing or sitting for prolonged periods of time. On examination of his left elbow in February 2020, he was found to have constant pain in the left elbow, that is achy with occasional sharp pains. The Veteran reported being unable to carry heavy objects or equipment with his left arm due to pain from his left elbow olecranon bursitis. As for his psychiatric condition, he was seen recently in August 2020 and found to have passive suicidal ideation without plan and intent. His mood was dysthymic. He was doing weekly mental health visits. He reported in July 2020 that he had a bad mood due to his pain. The Board acknowledges the statement of his employer in 2020 that he no longer works as a result of COVID-19. However, the ultimate unemployability determination is a legal one. See Geib v. Shinseki, 733 F.3d at 1354. There is no indication the Veteran has experience in sedentary work. There remains no indication the Veteran has an occupational background that would apply to a sedentary occupation. See also Withers v. Wilkie, No. 16-1543 (Vet. App. Aug. 10, 2018). The Veteran has reported his service-connected conditions have an impact on his ability to secure employment. Based on his work history, the realistic chance of his obtaining and maintaining substantial gainful employment is low. The Board concludes the criteria for an award of TDIU benefits are met, and he last worked in March 2020. The Board will not assign an effective date for the award of TDIU and will allow the RO to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curium order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.