Citation Nr: 21061395 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 15-18 801A DATE: October 1, 2021 ORDER For the period prior to June 26, 2014, an initial increased rating, in excess of 10 percent, for right knee degenerative joint disease (right knee disability) is denied. For the period prior to June 26, 2014, an initial increased rating, in excess of 10 percent, for left knee degenerative joint disease (left knee disability) is denied. Effective February 16, 2012, entitlement to a separate, additional, 10 percent rating, for a right knee disability is granted. Effective February 16, 2012, entitlement to a separate, additional, 10 percent rating, for a left knee disability is granted. For the period beginning June 26, 2014, an increased, 20 percent disability rating for limitation of flexion of the right knee (right knee disability) is granted. For the period beginning June 26, 2014, an increased, 20 percent disability rating for a limitation of flexion of the left knee (left knee disability) is granted. Effective June 26, 2014, entitlement to a separate, additional, 20 percent disability rating, for limitation of extension of the right knee, is granted. Effective June 26, 2014, entitlement to a separate, additional, 20 percent disability rating, for limitation of extension of the left knee, is granted. Entitlement to a total disability based on an individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the period prior to June 26, 2014, forward flexion of the Veteran's right knee was 140 degrees or greater, but at the same time, he had functional loss and/or functional impairment of the right knee on repetitive use and with flare ups, with pain on movement as the only contributing factor. 2. For the period prior to June 26, 2014, forward flexion of the Veteran's left knee was 140 degrees or greater, but at the same time, he had functional loss and/or functional impairment of the left knee on repetitive use and with flare ups, with pain on movement as the only contributing factor. 3. The Veteran's right knee disability additionally approximates a symptomatic removal of a semilunar cartilage. 4. The Veteran's left knee disability additionally approximates a symptomatic removal of a semilunar cartilage. 5. For the period beginning June 26, 2014, although limitation of flexion of the Veteran's right knee was at worst, 70 degrees, the right knee disability approximates additional limitation of motion, based on pain, weakness, and incoordination, which significantly limit the functional ability of the right knee with repeated use over time, as well as additional factors contributing to the right knee disability, including pain on movement, disturbance of locomotion, and swelling. 6. For the period beginning June 26, 2014, although limitation of flexion of the Veteran's left knee was at worst, 70 degrees, the left knee disability approximates additional limitation of motion, based on pain, weakness, and incoordination, which significantly limit the functional ability of the left knee with repeated use over time, as well as additional factors contributing to the right knee disability, including, pain on movement, disturbance of locomotion, and swelling. 7. For the period beginning June 26, 2014, the Veteran's right knee disability further, additionally reflects a limitation of extension at 15 degrees. 8. For the period beginning June 26, 2014, the Veteran's left knee disability further, additionally reflects a limitation of extension at 15 degrees. 9. Although the Veteran is unable to maintain and/or secure substantially gainful employment as a result of multiple disabilities, he is only service-connected for his bilateral knee disabilities, which alone, do not render him unable to maintain and/or secure substantially gainful employment. CONCLUSIONS OF LAW 1. For the period prior to June 26, 2014, the criteria for an initial increased rating, in excess of 10 percent, for a right knee disability on the basis of limitation of flexion, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71A, Diagnostic Code (DC) 5260. 2. For the period prior to June 26, 2014, the criteria for an initial increased rating, in excess of 10 percent, for a left knee disability on the basis of limitation of flexion, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71A, DC 5260. 3. Effective February 16, 2012, the criteria for a separate, additional rating for right knee, symptomatic semilunar cartilage removal have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71A, DC 5259. 4. Effective February 16, 2012, the criteria for a separate, additional rating for right knee, symptomatic semilunar cartilage removal have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71A, DC 5259. 5. For the period beginning June 26, 2014, the criteria for an increased rating, in excess of 20 percent, for a right knee disability on the basis of limitation of flexion, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71A, DC 5260. 6. For the period beginning June 26, 2014, the criteria for an increased rating, in excess of 20 percent, for a left knee disability on the basis of limitation of flexion, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71A, DC 5260. 7. For the period beginning June 26, 2014, the criteria for a separate, additional rating for right knee limitation of extension have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71A, DC 5261. 8. For the period beginning June 26, 2014, the criteria for a separate, additional rating for left knee limitation of extension have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71A, DC 5261. 9. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1975 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2013 and November 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Decatur, Georgia. In April 2015, the Regional Office increased the 10 percent disability ratings, for each right and left knee, to 20 percent disabling, effective June 26, 2014. In October 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In January 2020 and March 2021, the Board remanded this matter to the Regional Office for further evidentiary developments. As the matter has now returned for adjudication, the Board finds that there was substantial compliance with the prior, January 2020 and March 2021 remand directives. Increased Ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts entitlement to a higher rating for his service-connected right and left knee disabilities. Thus, in evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). For the period prior to June 26, 2014, the Veteran is currently assigned a 10 percent disability rating, each, for both right and left knee disabilities; and for the period beginning June 26, 2014, he is currently assigned a 20 percent disability rating, each, for both right and left knee disabilities (bilateral knee disability). Specifically, his service-connected knee disabilities are rated for degenerative joint disease, under DC 5260. 38 C.F.R. § 4.71A. Under DC 5260, the rating criteria for limitation of flexion of the leg, a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a maximum, 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. 1. Period Prior to June 26, 2014 As noted above, the Veteran is assigned a 10 percent disability rating for each extremity of the bilateral knee disability, for the period prior to June 26, 2014. In his October 2013 notice of disagreement to the September 2013 rating decision that granted service connection for the right and left knee disabilities, rated each, at 10 percent disabling, the Veteran asserted that should be granted a 50 percent disability rating, each, for the right and left knee disabilities. Further, he reported that surgery was recommended for both knees, and that he is in constant pain and his knees lock; and that he takes pain medication and wears two knee braces to treat his bilateral knee conditions. He also reported having swelling in both knees, and that his physician told him that he also has very minimal flexibility, besides arthritis, which will get worse. See April 2014 Statement in Support of Claim. For this period of the appeal, medical treatment records indicate that the Veteran did not have any acute fractures, subluxations, or dislocations of either right or left knee. See e.g. June 2013 X-ray Imaging Reports for the Left and Right Knee; See also September 2013 Private Treatment Record/Radiology Report from Dr. R.S. (also noting that there is no evidence of joint effusion in the right knee, despite the presence of a degenerative spur involving the patella); and that there is small joint effusion in the left knee, with degenerative spur involving the patella). In September 2013, the Veteran underwent a VA examination for knee and lower leg conditions. The VA examination report reflects that the Veteran was diagnosed with bilateral knee degenerative joint disease in 2013. At this examination, the Veteran reported having flare ups that impact the function of the knee and lower leg, which the Veteran described the impact as painful to walk and sleep, especially when it locks up. On testing for initial range of motion, right knee flexion was at 140 degrees or greater, with objective evidence of painful motion beginning at 140 degrees or greater; and there was no limitation of extension for the right knee. Left knee flexion was at 140 degrees or greater; and there was no limitation of extension for the left knee. On repetitive-use testing, which the Veteran was able to perform, right knee post-test flexion was still at 140 degrees or greater, and there was no limitation of post-test extension for the right knee. Similarly, left knee post-test flexion was still at 140 degrees or greater, and there was no limitation of post-test extension for the left knee. At this examination, the Veteran did not have any additional limitation in range of motion of either right or left knee, although he had functional loss and/or functional impairment of the knee, in which pain, on movement, was the only contributing factor for both knees. On assessment of muscle strength, the flexion and extension of both knees were normal in strength. Further, no history of patellar subluxation or dislocation was noted for either knee; and further, no additional conditions of either knee, such as, for example, shin splints, were noted. This VA examination report further notes that the Veteran had tenderness or pain to palpation for joint line or sot tissue of both knees. However, this VA examination report indicates that the Veteran has a history of a meniscectomy (between 1976 and 1980), and that he has frequent episodes of joint "locking in both knees, and frequent episodes of joint pain in the right knee. The VA examination report also notes that the Veteran wears a brace, as an assistive device, on a regular basis, to provide support to his knees. Additionally, the VA examiner noted, among other findings, that with respect to the functional impact of the Veteran's bilateral knee disability, that there is additional limitation of functional ability of the bilateral knee during flare-ups or repeated use over time, which the Veteran described as pain and decreased range of motion when climbing stairs, squatting, kneeling and lifting. After giving consideration to the Veteran's lay statements about the symptoms he experiences with his bilateral knee, as well as all probative medical evidence, however, the Board finds that an increased, 20 percent rating is not warranted for either right or left knee disability for this period of the appeal, under DC 5260. This is because the medical evidence does not show that flexion of either right or left knee is limited to 30 degrees, to meet the criteria for an increased, 20 percent rating, under this diagnostic code. Rather, and specifically, flexion of both right and left knee were 140 degrees or greater. The Board has considered whether a higher rating, in excess of at least 10 percent, is warranted for either right or left knee disability, pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, and the criteria under DeLuca and Mitchell. However, the Board finds that a higher rating is not warranted for either right or left knee disability, under these criteria. As noted above, the September 2013 VA examination report indicates that there is additional limitation of functional ability of the knees during flare ups or repeated use over time, which are described as pain and decreased range of motion. However, the Regional Office has already considered and applied these factors in its assignment of the current disability rating for each of the right and left knee, during this period of the appeal. More specifically, the Regional Office granted a 10 percent disability rating for each of the right and left knee disabilities, for functional loss due to pain on movement, and based on additional limitation of movement of both knee joints, in the assignment of the 10 percent disability rating, under the DeLuca and Mitchell criteria, as well as the criteria under 38 C.F.R. §§ 4.40, 4.45, 4.59. Although the Veteran has already been granted separate, additional ratings for associated bilateral knee scars, under DC 7805 (the diagnostic criteria for scars), effective February 16, 2012, the Board has also considered whether further, additional, separate ratings are available for the Veteran's right and/or left knee disabilities. The evidence does not show that the Veteran has ankylosis, recurrent subluxation or lateral instability, impairment of the tibia and fibular, genu recurvatum, or limitation of extension, at least at 5 degrees, for either right or left knee disability. Thus, separate, additional ratings are not applicable for either right or left knee disability, under DC 5256 (for ankylosis of the knee), DC 5257 (recurrent subluxation or lateral instability of the knee), DC 5261 (limitation of extension of the knee), DC 5262 (impairment of the tibia or fibula), or DC 5263 (genu recurvatum). Although the medical evidence reflects that the Veteran has a semilunar cartilage condition, with characteristics of frequent episodes of joint "locking" in both knees, and frequent episodes of joint pain in the right knee, there is no evidence of meniscal dislocation. Therefore, an extra, separate rating for a dislocated semilunar cartilage, with frequent episodes of "locking", pain, and effusion into the joint, is not warranted for either right or left knee, under DC 5258. Nonetheless, separate, additional ratings are available for the right and left knee, under DC 5259, which is the rating criteria for symptomatic removal of the semilunar cartilage. Specifically, the September 2013 VA examination report indicates that the Veteran underwent a meniscectomy in both knees between 1976 and 1980. The VA examiner further noted that the Veteran reported having residual symptoms of both knees, to include residual symptoms of the joints locking up. Although treatment records dating back to the 1970s and/or 1980s have not been associated with the claims file, the earliest treatment records that are associated with the claims file date back to as early as 2003, and some indicate that the Veteran underwent surgery for both knees in 1976 and 1980. See e.g. September 2008 Private Treatment Progress Note, in Treatment Records Provided by Social Security Administration (SSA); see also September 2020 Surgery H & P Note. Under DC 5259, a 10 percent, maximum rating is warranted for symptomatic removal of the semilunar cartilage. Thus, as the medical evidence reflects a history of a symptomatic meniscectomy (i.e. symptomatic removal of a semilunar cartilage) in both knees, a separate, additional, 10 percent disability rating is warranted for both right and left knee disabilities, under DC 5259. In summary, and based on the foregoing reasons and bases, an increased rating, in excess of 10 percent, must be denied for the period prior to June 26, 2014. At the same time, however, a separate, additional 10 percent disability rating is warranted for each of the right and left knee disabilities, effective February 16, 2012. 2. Period beginning June 26, 2014 As noted above, the Veteran is assigned a 20 percent disability rating for each extremity of the bilateral knee disability, for the period beginning June 26, 2014. As a preliminary matter in this period of the appeal, the Board particularly reiterates that in the April 2015 rating decision, the Regional Office increased the disability ratings for both right and left knees to 20 percent, effective June 26, 2014. Although the Veteran was initially rated at 10 percent each, for the right and left knee, under DC 5260, which is the rating criteria for limitation of flexion of the leg, the Regional Office granted an increased, 20 percent disability rating for both knees, under DC 5260, but at the same time, impermissibly used the rating criteria for a separate, distinct diagnostic code, DC 5261, which is the rating criteria for limitation of extension of the leg. Rather, the Regional Office should have granted the Veteran separate, additional ratings for limitation of extension, under DC 5261, at 20 percent, for each of the right and left knee, instead of substituting the diagnostic criteria for DC 5260 with the diagnostic criteria for DC 5261, to justify the 20 percent rating increases. Therefore, the Board finds that separate, additional ratings are warranted for both right and left knee disabilities, under DC 5261, whereas the rating disability for both right and left knee disabilities are restored to 10 percent disabling. Consequently, the Board has considered whether an increased rating, in excess of 10 percent, is warranted for both right and left knee disabilities, for the period beginning June 26, 2014. At his October 2019 videoconference hearing, the Veteran testified, with great detail, about the symptoms and manifestations of his bilateral knee disability. Specifically, for example, he testified that due to his bilateral knee disabilities, he has to use a walker, as an assistive device, to walk around his block. He explained that he used to walk an entire block, but now, he is down to walking half a block, holding on. He also explained that he has fallen three times with his walker, because his knees are basically unstable. Additionally, he explained that daily limitations that are caused by his knees, includes being confined to his house and taking minimal walks. He also explained that now when he walks, his knees gets swollen and he feels pain, which caused him to take pain killers three or four times a day, as well as ice and heat to alleviate his pain. The Veteran also reported that he cannot lift anything, including a gallon of milk, and that if he tried to lift something as heavy as a gallon of milk, he knees wobble, and a couple of times, he fell down, due to wobbly and unstable knees. He also reported that he specifically experiences throbbing underneath the cap of his knees, which keeps coming. The Veteran also explained that due to his knee disabilities, he is limited to sitting and standing, and when he attends games, for example, he cannot sit during an entire game. He clarified that his knees hurt when he sits down for too long, which is approximately for 30 or 40 minutes, and his knees lock up, thereby forcing him to get up. See also December 2020 Correspondence; see too, April 2021 Statement in Support of Claim; see too, May 2021 Correspondence (reiterating similar symptoms and manifestations of his bilateral knee disabilities, including his inability to walk if his knees swell up, bend, sit for a long period of time, and stand for more than 15 30 minutes, with trouble sleeping at night due to severe pain on both knees, which lock up; and reporting that since 2000, when he started having pain in both knees, his knee conditions have progressed severely, up to the current date). In a May 2021 buddy statement, the Veteran's spouse, J.S., explained that she has personally witnessed the Veteran's knee conditions worsen and result in many additional issues. He reported, in pertinent part, that the Veteran suffers from sleepless nights, in which he wakes up from pain. She also explained that the Veteran's physical health has deteriorated with the pain in his knees, which causes pain in his back and feet due to his inability to stand or walk properly. For this period of the appeal, the medical evidence suggests that while the Veteran continued to manifest symptoms severe pain, swelling, and locking of the knees, see e.g. November 2016 Primary Care Note, his bilateral knee disability worsened, as his most recent medical treatment records provide additional symptoms and manifestations of the bilateral knee disability, such as, for example, a gait imbalance, which according to his private physician, progressively aggravated his spine condition. See April 2021 Private Treatment Note. Additionally, for example, a May 2019 orthopedic surgery outpatient note indicates that the Veteran was using a walker, as an assistive device, and that based on an examination of the bilateral knee, the Veteran's quadriceps manifested weakness, as well as weak dorsiflexion. Further, this May 2019 note confirms that the Veteran has bilateral knee pain, bilateral degenerative joint disease, and bilateral lower extremity weakness. By July 2019, the Veteran sought consultation, and presented for, a total bilateral knee arthroplasty, due to his service-connected bilateral knee degenerative joint disease. See July 2019 Primary Care Consult Note. Further, a November 2019 pharmacy outpatient note indicates that the Veteran continued to report significant pain in the knees (as well as the back), which limits his daily activities and takes a toll on his mood. See also July 2020 Pharmacy Outpatient Note. A December 2020 knee evaluation, from his private treatment records, further emphasizes that the Veteran is unable to stand, walk, bend, or straighten his knees without pain; and additionally, reflects diagnoses of bilateral knee pain, generalized muscle weakness, and "[difficulty] in walking, not elsewhere classified." This December 2020 knee evaluation also indicates that the Veteran fell, two weeks prior to this consultation, and that he underwent an imaging of the left knee, which indicated that he had a torn meniscus. In an April 2021 correspondence, a private physician assistant, P.D., who renders private treatment to the Veteran, explains that the Veteran was treated in April 2021, and that he has underlying severe osteoarthritis of both knees, which has resulted in chronic pain, altered gait, and will require total knee replacement for each knee. P.D. further clarified that his knee procedures were postponed, at that time, due to his recent heart conditions. In June 2014, the Veteran underwent another VA examination for knee and lower leg conditions. At this examination, the Veteran reported having flare ups that impact his bilateral knee disabilities, which the Veteran described as pain that radiates down his legs, with additional symptoms of tingling and numbness. He also indicated that his knees are also affecting his ankles by placing too much pressure on them. On initial range of motion testing, flexion of the right knee was limited at 80 degrees, with objective evidence of painful motion beginning at 75 degrees; and right knee extension was limited at 15 degrees, with objective evidence of painful motion beginning at 15 degrees. Flexion of the left knee was limited at 80 degrees, with objective evidence of painful motion beginning at 75 degrees; and left knee extension was limited at 15 degrees, with objective evidence of painful motion beginning at 15 degrees. On range of motion testing after repetitive use, which the Veteran was able to perform, post-test flexion for the right knee was limited at 75 degrees, and post-test extension for the right knee was limited at 10 degrees. For the left knee, post-test flexion was limited at 75 degrees, and post-test extension was limited at 10 degrees. This VA examination report also notes that the Veteran had additional limitation in range of motion, as well as functional loss and/or functional impairment of both knees, with contributing factors, including weakened movement, pain on movement, and interference with sitting, standing, and/or weight-bearing. On testing for muscle strength, flexion of both right and left knees were reflective of active movement against some resistance (i.e. both knees were rated at " 4" out of a five-point scale); and extension of both right and left knees were also rated at "4" out of a five-point scale. Although this June 2014 VA examination report notes that the Veteran has a history of a semilunar cartilage condition, with frequent episodes of joint "locking" and frequent episodes of joint pain in both knees, meniscus dislocation, however, is not indicated. Given the Veteran's assertions, to include his lay statements at his October 2019 videoconference hearing, as well as medical evidence suggesting that his bilateral knee disabilities worsened, the Veteran was afforded a contemporaneous VA examination for an assessment of the current severity of his bilateral knee disabilities in January 2020. In the corresponding January 2020 VA examination report, a VA examiner noted that the Veteran reported that his knees usually swell up when he walks, and that most of the time when he sleeps, he cannot straighten his knees completely, which causes him to wake up in pain. He also stated that his knees worsened, they hurt all the time, and that he can no longer walk, whereas he used to walk up to one block, and subsequently, he was limited to walking half a block. At this examination, he did not report any flare ups, but he reported that he has functional loss or functional impairment of the knees, including but not limited to, repeated use over time. On testing for initial range of motion, which was outside of normal range, flexion for the right knee was between 10 and 70 degrees, and extension of the right knee decreased from 70 to 10 degrees, with range of motion contributing to functional loss. Pain was also noted on examination. For the left knee, flexion was between 10 and 70 degrees, and extension decreased from 70 to 10 degrees, with range of motion contributing to functional loss, and pain noted on examination. Although the Veteran was able to perform repetitive-use testing, with at least three repetitions, there was no additional functional loss or range of motion after three repetitions for either knee; and there is no indication that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time for either knee. Nonetheless, the VA examiner found that additional contributing factors of the bilateral knee disability, include swelling, disturbance of locomotion, and pain on movement. On testing for muscle strength, flexion of both right and left knees were rated at a "4" out of five-point scale; nad extension of both right and left knees were also rated at a "4" out of a five-point scale. Although the VA examiner found that there was no reduction in muscle strength for either knee, she, however, found that there is a "reduction entirely due to" the bilateral knee degenerative joint disease. Upon a review of all probative medical evidence, including all probative medical treatment records and VA examination reports, however, the Board finds that an increased, 20 percent rating is not warranted for either right or left knee disability for this period of the appeal, under DC 5260. Although the medical evidence indicates that limitation of flexion of both knees is worser, compared to the period of the appeal prior to June 26, 2014, limitation of flexion of both knees, at its worst during this period of the appeal, was at 70 degrees. However, this exceeds the degree criterion, which requires that a limitation of flexion of the knee must not exceed 30 degrees, to warrant an increased, 20 percent disability rating, under DC 5260. Nonetheless, this finding is not dispositive of this issue, as the Board has considered whether a higher rating, in excess of at least 20 percent, is warranted for either right or left knee disability, for this period of the appeal, pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, and the criteria under DeLuca and Mitchell. As indicated above, the evidence reflects that during this period of the appeal, the Veteran's bilateral knee disabilities manifested additional limitation in range of motion, as well as functional loss and/or functional impairment, with a contributing factor of weakened movement, which is an additional, contributing factor since the previously documented contributing factor of pain on movement during the period prior to June 26, 2014. Furthermore, as noted above, and in addition to medical evidence that the Veteran's bilateral knee is characterized by additional, contributing factors, including include swelling and disturbance of locomotion, the medical evidence consistently suggests that weakness and incoordination significantly limit the functional ability of both knees, with repeated use over time. See June 2014 VA Examination Report; see also January 2020 VA Examination Report; see too, May 2019 Orthopedic Surgery Outpatient Note; see too, December 2020 Knee Evaluation, Private Treatment Note. Therefore, the Board finds that an increased, 20 percent disability rating for both right and left knee disabilities are warranted, under the DeLuca and Mitchell criteria, and pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59. For this period of the appeal, the Regional Office granted separate, additional ratings for associated bilateral knee scars, under DC 7805 (the diagnostic criteria for scars) during this period of the appeal. See August 2020 Rating Decision, Additionally, and as indicated above, this decision granted separate, additional ratings for symptomatic removal of the semilunar cartilage for the bilateral knee. Nonetheless, the Board has also considered whether further, additional, separate ratings are available for either right or left knee disabilities. For this period of the appeal, beginning June 26, 2014, the evidence still does not show that the Veteran's knees have ankylosis, recurrent subluxation or lateral instability, impairment of the tibia and fibular, or genu recurvatum. Thus, separate, additional ratings are not applicable for either right or left knee disability, under DC 5256 (ankylosis of the knee), DC 5257 (recurrent subluxation or lateral instability of the knee), DC 5262 (impairment of the tibia or fibula), or DC 5263 (genu recurvatum) for the period beginning June 26, 2014. Additionally, while the medical evidence still reflects that the Veteran has a semilunar cartilage condition, with characteristics of frequent episodes of joint "locking" in both knees, and frequent episodes of joint pain in the right knee, there is still no evidence of meniscal dislocation. Therefore, an extra, separate rating for a dislocated semilunar cartilage, with frequent episodes of "locking", pain, and effusion into the joint, is not warranted for either right or left knee, under DC 5258, for this period of the appeal, beginning June 26, 2014. Therefore, no other separate, additional ratings are available or applicable to either right or left knee disabilities. Thus, in summary, the Board finds that an increased rating of no higher than 20 percent is granted for the bilateral knee, and additionally, the Board also re-emphasizes that a separate, additional, 20 percent disability rating for limitation of extension of each of the right and left knee is also granted. TDIU The Veteran asserts that he has not worked in seventeen years, due to his service-connected bilateral knee disabilities. See November 2020 Application for Increased Compensation Based on Unemployability (TDIU Application). A total disability rating may be warranted where the schedular rating is less than total, and a disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). While consideration may be attributed to a veteran's level of education, special training, and previous work experience, consideration must not be given to the veteran's age or an impairment that is due to a nonservice-connected disability. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Additionally, marginal employment will not be considered as substantially gainful employment. 38 C.F.R. § 4.16 (a). "Substantially gainful employment" essentially means that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. When the minimum percentage criteria, under 38 C.F.R. § 4.16(a) are not met, TDIU may still be granted on an extraschedular basis under circumstances where the Veteran is unable to secure and/or follow a substantially gainful occupation by reason of a service-connected disability. 38 C.F.R. § 4.16(b). To establish TDIU on an extraschedular basis, however, the record must reflect some factor that takes the case outside of normal circumstances. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not sufficient. While a disability rating is recognition that the impairment makes it difficult to obtain or keep employment, the ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, and not whether one can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). A determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment that exceeds the poverty threshold for one person. The non-economic component requires consideration of a number of factors, including the frequency and duration of periods of incapacity or time lost from work due to a service-connected disability, the veteran's employment history and current employment status, and the veteran's annual income from employment, if any. See Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran is service-connected for right knee degenerative joint disease, at a 10 percent disability rating, prior to June 26, 2014, and at a 20 percent disability rating, beginning June 26, 2014; left knee degenerative joint disease, at a 10 percent disability rating, prior to June 26, 2014, and at a 20 percent disability rating, beginning June 26, 2014; right knee scar, associated with right knee degenerative joint disease, at a zero, non-compensable rating; left knee scar, associated with left knee degenerative joint disease, at a zero, non-compensable rating. Given this Board decision, which granted the aforementioned, separate, additional ratings for bilateral knee degenerative joint disease, he is now service-connected for right knee, symptomatic removal of the semilunar cartilage, at a 10 percent disability rating; left knee, symptomatic removal of the semilunar cartilage, at a 10 percent disability rating; right knee limitation of extension, at a 20 percent disability rating; and left knee limitation of extension, at a 20 percent disability rating. As all of these service-connected disabilities, which comprise the Veteran's combined disability rating, resulted from a common etiology or accident, and/or they affect a single body system (i.e. orthopedic, bilateral knee) they are considered as a single disability for TDIU purposes. 38 C.F.R. § 4.16(a)(3), (a)(4). Thus, as the combined disability rating, which is based on a single disability, is now 70 percent, the minimum percentage criteria for a TDIU is established. 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Nonetheless, the central inquiry is whether the Veteran's service-connected disabilities alone are of enough severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not sufficient. As a matter of fact, a high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. However, the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, and not whether he or she can find employment. Hoose v. Brown, 4 Vet. App. 361 (1993). The United State Court of Appeals for Veterans Claims (Court) held that "[i]n determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to": (1) The veteran's history, education, skill, and training; (2) Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) Whether the veteran has the mental ability to perform the activities required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). However, consideration cannot be given to the Veteran's age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Additionally, "[by] discussing [the] potentially relevant factors, we don't create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it." Ray, 31 Vet. App. at 58. The Veteran reported that he became too disabled to work in 2002, 2003, or 2004, and that he has been on SSA disability since then. See October 2020 TDIU Application; see also November 2020 TDIU Application. At his October 2019 videoconference hearing, he testified that the last time he worked was in 2003, as a police officer. He explained that he was forced to leave the police force due to his back problem. Additionally, he explained that he underwent surgery for his knees, and that the physician who operated on his knees informed him that down the years, he is going to have some back problems, compensating for balance between both of his knees. Further, he reported that he started receiving disability benefits from Social Security Administration (SSA) in 2007 or 2008. In assessing the Veteran's employability, the Court defines "substantially gainful employment" as encompassing both an economic and a noneconomic component. Ray, 31 Vet. App. at 58. 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," whereas the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. In this case, the Veteran has not met the criterion for the economic component at any time during the entire appeal period, as the evidence suggests that the Veteran stopped working full-time in July 2002. See October 2002 Correspondence from Attorney, P.R.G., SSA Records; see also June 2009 SSA Administrative Decision, SSA Records. With respect to the noneconomic component, factors to consider, as noted above, include the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. In this regard, the highest level of education the Veteran completed is four years of college, with a bachelor's degree. See October 2019 Videoconference Hearing Transcript; see also November 2020 TDIU Application. Additionally, he obtained additional training in military police and law enforcement schools, and he worked as a deputy sheriff and police officer in his last three positions before he stopped worked, approximately 18 years ago. See October 2020 TDIU Application; see also November 2020 TDIU Application; see too, April 2008 Georgia Department of Labor Work History Report. Nonetheless, the evidence does not show that the Veteran is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities alone. Although SSA records confirm that the Veteran has been on SSA disability benefits since 2008, probative evidence indicates that the Veteran became disabled and stopped working as a result of a back (lumbar spine) disability. Specifically, for example, an October 2002 correspondence to a surgeon, Dr. T.D., from the Veteran's attorney, P.R.G., expressly informs that "[as] a result of his back problems, he has been out of work since July 22, 2002." Additionally, SSA records provide well documented, voluminous treatment records and other related correspondences about the Veteran's chronic back disability. Pertinently, findings from a June 2009 SSA administrative decision indicate, in pertinent part, that the Veteran has severe lumbar degenerative disc disease and spinal stenosis impairments; and that there are no jobs that exist in significant numbers in the national economy that the Veteran could perform. Although SSA administrative decisions are not binding on VA, the Board finds that this administrative decision is probative to the extent that it provides clarification on what specific impairments resulted in the Veteran's inability to secure or maintain full-time employment, and whether the pertinent disability is service connected. In this regard, the Board observes that this administrative decision makes no mention of any knee disabilities. Rather, these findings, with respect to the Veteran's ability to work, are clearly based on the Veteran's lumbar spine disability, which is not a service-connected disability. Nonetheless, the Veteran does not dispute that he stopped working in 2002 as a result of his back disability, see October 2019 videoconference hearing, and thus, the Board has considered whether his service-connected bilateral knee disabilities alone render him unemployable. Describing the severity of his bilateral knee disabilities, the Veteran asserted that "[due] to [his] physical disability on both my feet, [he has] learned to walk differently by shifting and balancing the pain from one leg to another and at the same time, it has caused a lumped growth under [his] right foot[,] causing severe pain to walk.," See February 2017 Correspondence. The Board does not discount that the fact that the Veteran's service-connected bilateral knee disabilities approximate severe functional impairments that make it virtually impossible for him to undertake any type of work that is similar or within the scope of his past work experience as a deputy sheriff or police office, as this type of work requires the active use of his legs and knees for walking, running, squatting, or bending, all of which the Veteran is unable to undertake due to the severe impairments of his service-connected bilateral knee disabilities. At the same time, however, the Board cannot ignore evidence, which entails the Veteran's disclosures that he worked in positions that are apparently sedentary in nature, which did not require the same rigorous demand on his knees as a police officer. Specifically, the Veteran reported that he worked as a mail sorter in customer service for a copy machine company, as well as in customer service for an airline. See April 2008 Disability Report, SSA Records. Furthermore, the medical evidence does not suggest that the Veteran's bilateral knee disabilities completely pre-empt him from securing substantially gainful employment. For example, in an assessment of the Veteran's bilateral knee disabilities, a VA examiner, in a September 2013 VA examination report, found that "the impact of the knee/lower leg [conditions] on the [Veteran's] ability to work is none", because the Veteran "stated that he has been disabled due to a back condition"; and that the Veteran "stated that he has difficulty bending and is unable to exercise." In a January 2020 VA examination report, a VA examiner described the functional impact of the Veteran's bilateral knee disabilities on his ability to perform any occupational task as, difficulty with walking community distances, pain with bending knees, and difficulty with stairs. However, the VA examiner did not identify, nor does any other medical evidence reflect, any functional impairments of the Veteran's bilateral knee disabilities that forecloses any possibilities of the Veteran engaging in light, sedentary work. Thus, as customer service may be considered as sedentary work, in which tasks entail very limited amounts of physical activity, such as, for example, bending or heavy lifting, the Board finds that the functional impairments of the Veteran's bilateral disabilities are unlikely to impact his ability to work in this capacity, with reasonable accommodations for short periods of standing and sitting down. Nonetheless, the Veteran also asserts that his medical restrictions, which include a psychiatric disability, as well as medications, have cost him his job and rendered him unable to work since 2003. See January 2021 Correspondence. While it is plausible that the Veteran's mental ability to perform work tasks that may be required by a sedentary type of occupation are most likely to impact his ability to execute his duties, the Veteran is not service-connected for a psychiatric disability. Thus, in assessing the Veteran's employability, consideration cannot be attributed to this non-service-connected disability. In summary, the Veteran's disabilities include, and may not be limited to bilateral knee disabilities, a lumbar spine disability, and a psychiatric disability. Collectively, these disabilities render him unable to maintain and secure substantially gainful employment. However, he is only service-connected connected for his bilateral knee disabilities, which alone, do not render him unable to maintain and secure substantially gainful employment. The Veteran has a bachelor's degree, with prior experience in customer service. He previously worked as a mail sorter, and this type of position does not usually require a lot of bending, heavy lifting, or rigorous demands on the bilateral knee. Additionally, similar positions as a mail sorter are likely able to accommodate short periods of standing and sitting, given that the Veteran is unable to stand or sit for long periods of time. Thus, for the foregoing reasons and bases, the Board finds that the preponderance of the evidence is against this claim, and entitlement to a TDIU must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.