Citation Nr: 21064102 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-28 256A DATE: October 19, 2021 ORDER Entitlement to a disability rating of 20 percent, but not higher, for the service-connected thoracolumbar spine (low back) disability is granted. Entitlement to a disability rating higher than 10 percent for limitation of motion of the left knee associated with the service-connected left knee disability is denied. From the date of the final September 23, 2013, Board decision to February 7, 2021, entitlement to a disability rating higher than 10 percent for lateral instability of the left knee associated with the service-connected left knee disability is denied. Since February 7, 2021, entitlement to a disability rating of 20 percent, but not higher, for lateral instability of the left knee associated with the service-connected left knee disability, is granted. Entitlement to an effective date earlier than April 30, 2008, for the assignment of a 10 percent rating for instability of the left knee associated with the service-connected left knee disability is denied. Entitlement to a disability rating higher than 10 percent for the service-connected gastroenteritis is denied. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The service-connected low back disability is manifested by painful motion with forward flexion greater than 30 degrees, but less than 60 degrees. 2. The service-connected left knee disability is manifested by painful motion with normal extension and with flexion exceeding 30 degrees. 3. From the date of the final September 23, 2013, Board decision to February 7, 2021, the service-connected left knee disability was manifested by slight lateral instability. 4. Since February 7, 2021, the service-connected left disability is manifested by a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace. 5. Prior to the current effective date of April 30, 2008, the service-connected left knee disability was manifested by no appreciable lateral instability. 6. The service-connected gastroenteritis is manifested by two or more of the symptoms for the 30 percent level, of less severity. 7. The combined service-connected disabilities have not rendered the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent for the service-connected low back disability are met; the criteria for a rating higher than 20 percent are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for a disability rating higher than 10 percent for limitation of motion associated with the service-connected left knee disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. From the date of the final September 23, 2013, Board decision to February 7, 2021, the criteria for a disability rating higher than 10 percent for lateral instability or recurrent subluxation associated with the service-connected left knee disability were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. Since February 7, 2021, the criteria for a disability rating of 20 percent for lateral instability or recurrent subluxation associated with the service-connected left knee disability are met; the criteria for a rating higher than 20 percent are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 5. The criteria for an effective date earlier than April 30, 2008, for the assignment of a 10 percent disability rating for left knee lateral instability associated with the service-connected left knee disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 6. The criteria for a disability rating higher than 10 percent for the service-connected gastroenteritis are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.112, 4.113, 4.114, Diagnostic Code 7346. 7. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from November 1990 to May 1995. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2021, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO's denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. Consistent with the Veteran's testimony, the issue of TDIU entitlement is being considered here as a component of the increased rating claims in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). VA added additional relevant treatment records to the claims file subsequent to the most recent adjudication of his appeal by the agency of original jurisdiction, and the Veteran provided a written waiver of initial adjudication by the AOJ. Increased RatingsLaw and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, supra; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). During the course of this appeal, the criteria for Diagnostic Code 5201 rating arm disabilities, changed effective February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board must consider the application of prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to a disability rating higher than 10 percent for the service-connected low back disability. In an August 1995 decision, VA granted service connection for a low back disability and assigned a 10 percent disability rating under Diagnostic Code 5295, effective May 6, 1995. In September 2013, the Board denied an increased rating for the low back. The agency of original jurisdiction again denied an increased rating in August 2014, identifying a date of claim of June 19, 2012. As the Board had jurisdiction over the claim at that point, and subsequently denied the claim, subsuming any and all active claims for the same benefit, the date of claim for this decision can be no earlier than the day following the September 2013 Board denial of the same claim. Effective February 7, 2021, degenerative arthritis, and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. A rating under Diagnostic Code 5243 for intervertebral disc syndrome is only to be assigned when there is disc herniation with compression of the adjacent nerve root. See 85 Fed. Reg. 76464 (Nov. 30, 2020). These changes do not affect the ratings assigned, but simply affect the diagnostic code to be assigned. All disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A rating of 100 percent requires unfavorable ankylosis of the entire spine. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A rating of 40 percent requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A rating of 20 percent requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 10 percent is assigned with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, note (2) (See also Plate V). The evidence of record includes a March 4, 2015, VA physical therapy note revealing lumbar range of motion from 0 to 40-60 degrees flexion, and 0 to 20-35 degrees extension. Side bending was from 0 to 14-20 degrees, and rotation from 0 to 3-18 degrees (described as decreased 25 percent) (Record 04/10/2019 at 631). A VA spine examination in April 2017 reveals the Veteran's complaint of pain, stiffness, and limited motion. Pain is, on average, worse with prolonged sitting, standing and walking distance, bending movements, and during cold and moist weather. On examination, forward flexion was measured to 80 degrees; extension was to 15 degrees; right lateral flexion was to 30 degrees; left lateral flexion was to 25 degrees; and rotation was to 30 degrees, bilaterally. After 3 repetitions, there was no change in range of motion. The Veteran denied the occurrence of flares. The examination was conducted after repeated use over a period of time, so the range of motion measurements reflect this. There was no evidence of pain with weight-bearing. Guarding and muscle spasms did not result in abnormal gait or abnormal spinal contour. Lower extremity muscle strength was full, without atrophy. Reflexes and sensation were normal. There were no signs or symptoms of radiculopathy or intervertebral disc syndrome. The examiner diagnosed lumbar strain and arthritis (Record 04/11/2017). A September 11, 2019, VA physical therapy note reveals lumbar range of motion to 40 degrees flexion (active) and extension to 10 degrees (active) (Record 08/07/2020 at 86). After a review of all of the evidence, the Board finds that the criteria for a disability rating of 20 percent, but not higher, are met. The evidence regarding range of motion is mixed. The VA examination shows forward flexion to 80 degrees; however, the March 2015 and September 2019 VA physical therapy notes show range of motion within the range for a 20 percent rating. Resolving all reasonable doubt in favor of the claim, the Board finds that a disability rating of 20 percent is warranted. However, none of the range of motion measurements have been 30 degrees or less. Moreover no description of ankylosis has been demonstrated. The Veteran has always had some effective motion of the thoracolumbar spine, albeit painful. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. see 38 C.F.R. § 4.40. These normal working movements of the body are evaluated in the case of a low back disability through range of motion testing and strength testing. The Veteran has testified that his range of motion is "20, 30"; however, the basis for making this estimate is unclear. While the Veteran is competent to estimate his range of motion, some explanation for the estimate is necessary. The Board has considered this estimate in resolving reasonable doubt in favor of a 20 percent rating. As all other measurements exceed the criteria for a 40 percent rating, on balance the criteria for a 40 percent rating are not more nearly approximated than are those for the 20 percent rating. 38 C.F.R. § 4.7. The Veteran has always been able to attain the neutral position and does not have characteristics consistent with unfavorable ankylosis. Accordingly, no rating higher than 20 percent is warranted under the General Formula. The Veteran testified that he has radicular symptoms; however, the medical evidence demonstrates that he does not have intervertebral disc syndrome or associated neurological abnormalities. While the Veteran is competent to report pain in his lower extremities, he is not competent to attribute those symptoms to his low back disability. Therefore, the formula for rating intervertebral disc syndrome on the basis of incapacitating episodes is not for application and no separate neurological ratings are warranted. In sum, the Board finds that the service-connected low back disability is manifested by painful motion with forward flexion greater than 30 degrees, but less than 60 degrees. In light of these findings of fact, the Board concludes that a disability rating of 20 percent for the service-connected low back is warranted. The Board also finds that no rating higher than 20 percent is warranted, and that no separate ratings are warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a rating higher than 20 percent, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a disability rating higher than 10 percent for limitation of motion of the left knee associated with the service-connected left knee disability. Entitlement to a disability rating higher than 10 percent for lateral instability or recurrent subluxation of the left knee associated with the service-connected left knee disability. In an August 1995 decision, VA granted service connection for a left knee disability and assigned a rating of 0 percent under Diagnostic Code 5024, effective May 6, 1995. In a December 2006 rating decision, the rating was increased to 10 percent, effective January 4, 1999 (date of claim). In an April 2009 decision, a temporary total rating was assigned, effective February 3, 2009. A rating of 10 percent was assigned, effective May 1, 2009. In September 2013, the Board denied an increased rating for limitation of motion of the left knee. The agency of original jurisdiction again denied an increased rating in August 2014, identifying a date of claim of June 19, 2012. As the Board had jurisdiction over the claim at that point, and subsequently denied the claim, subsuming any and all active claims for the same benefit, the date of claim for limitation of motion can be no earlier than the day following the September 2013 Board denial of the same claim. In the September 2013 decision, the Board granted a separate rating of 10 percent for left knee instability and denied any rating higher than 10 percent. The Board did not assign an effective date for the separate rating, leaving that to the agency of original jurisdiction as a down-stream issue. In a September 2013 decision, the agency of original jurisdiction implemented the Board's grant and assigned an effective date of April 5, 2011, under Diagnostic Code 5257. In a December 2013 decision, the agency of original jurisdiction extended the grant back to April 30, 2008. As the Board did not assign an effective date in September 2013, the date of claim regarding the effective date for a 10 percent rating is January 4, 1999, the original date of claim for a left knee disability. However, as the Board denied any rating higher than 10 percent in September 2013, as with the rating for limitation of motion, the date of claim for an increased rating for instability can be no earlier than the day after the September 2013 Board decision. Under Diagnostic Code 5256 ankylosis is rated at 60 percent where it is extremely unfavorable, in flexion at an angle of 45 degrees or more; a rating of 50 percent where in flexion between 20 degrees and 45 degrees; a rating of 40 percent where in flexion between 10 degrees and 20 degrees; and a rating of 30 percent where at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Effective February 7, 2021, under Diagnostic Code 5257, other impairment of the knee can be rated on the basis of either recurrent subluxation or lateral instability, or on the basis of patellar instability. Where a rating is assigned on the basis of recurrent subluxation or lateral instability, a rating of 30 percent is assigned if there is an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A rating of 20 percent is assigned with one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A rating of 10 percent is assigned for a sprain, incomplete ligament tear, or complete ligament tear repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Where a rating is assigned on the basis of patellar instability, a rating of 30 percent is warranted where there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A rating of 20 percent is warranted with a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A rating of 10 percent is warranted with a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under the pre-amended version of Diagnostic Code 5257, a rating of 30 percent was assigned for recurrent subluxation or lateral instability that was severe; a 20 percent rating was assigned for moderate symptoms; a 10 percent rating was assigned for slight symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). Under Diagnostic Code 5258, a rating of 20 percent is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, symptomatic removal of the semilunar cartilage is assigned a rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, limitation of flexion of the knee is assigned a rating of 30 percent where flexion is limited to 15 degrees; a rating of 20 percent where flexion is limited to 30 degrees; a rating of 10 percent where flexion is limited to 45 degrees; or a rating of 0 percent where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the knee is assigned a rating of 50 percent where extension is limited to 45 degrees; a rating of 40 percent where extension is limited to 30 degrees; a rating of 30 percent where extension is limited to 20 degrees; a rating of 20 percent where extension is limited to 15 degrees; a rating of 10 percent where extension is limited to 10 degrees; or a rating of 0 percent where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5262, impairment of the tibia and fibula is assigned a rating of 40 percent with nonunion, with loose motion, requiring brace. With malunion of tibia and fibula, Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, are to be applied, whichever results in the highest evaluation. For medial tibial stress syndrome (MTSS), or shin splints, a rating of 30 percent requires treatment for no less than 12 consecutive months, and unresponsiveness to surgery and either shoe orthotics or other conservative treatment, both lower extremities; a rating of 20 percent requires treatment for no less than 12 consecutive months, and unresponsiveness to surgery and either shoe orthotics or other conservative treatment, one lower extremity; a rating of 10 percent requires treatment for no less than 12 consecutive months, and unresponsiveness to either shoe orthotics or other conservative treatment, one or both lower extremities; a rating of 0 percent is appropriate with treatment less than 12 consecutive months, one or both lower extremities. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) is assigned a rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5263. The evidence of record includes a VA Form 21-4138 (Statement in Support of Claim), submitted on April 30, 2008. The Veteran reported unspecified tendon inflammation (Record 04/30/2008). The agency of original jurisdiction used this as the basis for the current effective date for the rating for lateral instability. Shortly thereafter, he reported that he was wearing a knee brace (Record 05/30/2008). A November 18, 2008, clinical note reveals complaint of knee pain. On examination, McMurray's test was positive, as was valgus stress. Lachman's, anterior drawer, and varus stress were negative (Record 12/03/2008). The Veteran underwent arthroscopy of the left knee with debridement and removal of loose bodies in February 2009. An MRI was consistent with a possible tear in the posterior portion of the medial meniscus (Record 03/27/2009). In December 2010, the Veteran testified that his left knee "gives away." He described this term as buckling. He testified that it does not happen a lot, but it has happened quite a few times (Record 12/10/2010). A VA joints examination in April 2011 reveals the Veteran's complaint of giving way and pain, but no instability or subluxation. On examination, there was no instability or meniscal abnormality. The examiner diagnosed degenerative joint disease, which would have mild effect on employment (Record 04/12/2011). Imaging on February 20, 2015, reveals sequelae of chronic proximal patellar tendinosis without findings to suggest acute tendinopathy or tear. There was focal chondromalacia with high grade fissure in the trochlear cartilage. Minimal thinning of the medial femorotibial compartment cartilage without focal chondral defect was noted (Record 04/10/2019 at 642). An April 6, 2015, VA orthopedic note reveals range of motion of the left knee from 0 to 110 degrees. Stability was normal. The examiner diagnosed patellofemoral degenerative joint disease (Record 04/10/2019 at 625). A VA knee examination in April 2017 reveals the Veteran's complaint of knee pain and stiffness, affecting standing or sitting for too long, and long distance walking, as well as squatting or kneeling. The knee locks and buckles. He uses a brace and a cane. On examination, extension was full, and flexion was to 105 degrees. Motion was painful, but there was no pain with weight bearing. There was no additional limitation of motion after repetitive use. The Veteran denied flares during the examination. Muscle strength was 4/5 with no atrophy. There was no history of subluxation or lateral instability. All objective tests for lateral instability were normal. There was no meniscal pathology. The examiner diagnosed tendonitis/tendinosis and arthritis (Record 04/11/2017). An October 2017 MRI of the knee shows no acute findings or evidence of internal derangement with stable appearance of chondromalacia (Record 04/10/2019 at 308). After a review of all of the evidence, the Board finds that the criteria for a rating higher than 10 percent are not met on the basis of limitation of motion. The Board also finds that, from the final September 23, 2013, Board decision to February 7, 2021, the criteria for a rating higher than 10 percent are not met on the basis of lateral instability. However, since February 7, 2021, the criteria for a rating of 20 percent are met on the basis of lateral instability. The Veteran's knee disability is manifested by limitation of motion, painful motion, pain on weight bearing, weakness, swelling, and lateral instability, with occasional locking and giving way. Regarding range of motion, the Veteran's knee exceeds by a large margin the degree of flexion necessary for even the 10 percent rating currently assigned. His extension has always been full. As flexion is not limited to 30 degrees, and as extension is not limited to 10 degrees, no higher ratings are warranted based on limitation of motion. The Board has considered the Veteran's episodes of locking. However, there is only one such description of record. While locking of the knee would temporarily reduce range of motion, it does not appear that this is a constant or near constant reduction. Accordingly, the measured range of motion is considered a more accurate description of the normal condition of the knee. The Board has also considered the Veteran's description of buckling and giving way. This is rather vague terminology which has no direct corollary in the rating criteria for the knee. The Board interprets this terminology as consistent with weakness in the normal plane of motion, i.e., a temporary inability to resist flexion. While this clearly affects use of the joint, the Veteran has described this symptomatology as not occurring often. Accordingly, the Board finds that there is not an adequate basis to assign a higher rating on the basis of limitation of motion, which would require symptomatology approximating limitation of motion to 30 degrees flexion or 10 degrees extension. The Board has considered whether a separate rating of 10 percent is warranted under Diagnostic Code 5259. The Veteran has symptomatic removal of semilunar cartilage. He has undergone a debridement of the left knee for torn meniscus. However, the only symptomatology that can be associated with this condition is pain and lateral instability. The Veteran is already being compensated for these symptoms. Adding another rating for these symptoms would constitute pyramiding. 38 C.F.R. § 4.14. The Veteran testified that the VA examiner did not try to manipulate the Veteran's knee when conducting range of motion testing. However, this is not an inadequacy of the examination. It is up to the discretion of the examiner how to conduct range of motion testing. Physical manipulation of the joint could conceivably cause additional injury and it is within the examiner's discretion not to conduct passive range of motion testing. The Veteran testified that he can only flex his knee to "30, 40." As with the low back, the Veteran did not describe the rationale for this estimate or why it differs so markedly from the examination results. Accordingly, the Board places greater accuracy and probative weight on the examination findings. Regarding lateral instability, prior to an amendment in February 2021, ratings for lateral instability were constrained to the degree of instability. Here, measurements of lateral instability have been entirely negative for the condition. The current rating was assigned based on the Veteran's assertion that his knee was unstable and that he wore a brace. While he is competent to describe his perception of instability, the question of the level of severity of instability must be a balance of subjective and objective evidence. The fact that no lateral instability has been detected during examination and testing of the knee is probative and persuasive evidence that, to the extent instability exists, it is no more than slight. As noted above, the Veteran has claimed that his left knee gives out on him (Record 12/27/2005); however, this imprecise description is not necessarily an assertion of lateral instability. For reasons discussed above, the Board has interpreted this as weakness in the natural plane of joint motion. The Veteran has reported that he needs a brace due to instability (Record 06/25/2018); however, he has provided no description of lateral instability, i.e., not in the normal plane of motion, that suggest more than slight lateral instability. Since the February 2021 amendment, the criteria now include additional parameters for assignment of ratings other than the degree of lateral instability. Under the current Diagnostic Code 5257, a rating of 20 percent may be assigned with a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. Here, the Veteran underwent debridement for a torn meniscus in February 2009, with reports of recurrent instability and a prescription for a knee brace (Record 12/23/2020 at 23). Accordingly, the Board concludes that a rating of 20 percent is warranted since that date. As the amendment appears to be liberalizing in part, the Board may not apply this provision prior to its effective date. A rating of 30 percent is not warranted as there is not a complete tear of a ligament. In sum, the Board finds that, since February 7, 2021, a rating of 20 percent, but not higher, is warranted for lateral instability of the left knee. The Board also finds that no rating higher than 10 percent is warranted for limitation of motion of the left knee, and that, prior to February 7, 2021, no rating higher than 10 percent is warranted for lateral instability of the left knee. In addition, the Board finds that no separate ratings are warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette, 28 Vet. App. at 371. Entitlement to a disability rating higher than 10 percent for the service-connected gastroenteritis. In an October 2005 rating decision, VA granted service connection for gastroenteritis and assigned a disability rating of 0 percent under Diagnostic Code 7346, effective January 4, 1999 (date of claim). In a December 2006 rating decision, the rating was increased to 10 percent, effective January 4, 1999. In September 2013, the Board denied an increased rating for gastroenteritis. The agency of original jurisdiction again denied an increased rating in August 2014. While it reported the date of claim as June 19, 2012, the Board had jurisdiction over the claim at that point. Therefore, the date of claim could be no earlier than the day following the September 23, 2013, Board denial. Under Diagnostic Code 7346 (hernia hiatal), a rating of 60 percent is assigned with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health; a rating of 30 percent is assigned with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; a rating of 10 percent is assigned with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. For purposes of evaluating conditions in § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112. A VA stomach conditions examination in April 2017 reveals the Veteran's complaint of recurring episodes of symptoms occurring four or more times per year and lasting one to nine days. Symptoms occurred at least monthly, were pronounced, periodic, and were only partially relieved by standard therapy. There was no other pertinent physical findings. There were no other significant diagnostic test findings or results. The examiner diagnosed gastroenteritis and GERD. This was treated with omeprazole. There was no impact of the condition on the Veteran's ability to work (Record 04/11/2017). A June 21, 2018, emergency department note reveals no nausea or vomiting (Record 04/10/2019 at 142). A December 14, 2020, urology note indicates the Veteran's denial of nausea or vomiting as well as abdominal or flank pain (Record 12/23/2020 at 1). At the Board hearing in January 2021, the Veteran testified that he experiences abdominal pain, vomiting, and diarrhea three times per week (Record 01/07/2021). A biopsy of the duodenum, stomach, and ascending colon in April 2021 reveals a single polyp in the ascending colon. There was no significant pathology in the duodenum. There was reactive gastropathy-like changes with mild chronic inactive gastritis in the stomach. There were no organisms consistent with H. pylori (Record 05/14/2021 at 13). After a review of all of the evidence, the Board finds that the criteria for a rating higher than 10 percent are not met. The Board notes that the criteria for the next higher 30 percent rating are mainly stated in the conjunctive, "with," but include a subset of disjunctive criteria. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). All of the symptoms of (1) persistently recurrent epigastric distress, (2) dysphagia, (3) pyrosis, (4) regurgitation, (5) substernal or arm or shoulder pain, and (6) productive of considerable impairment of health, must be met to establish entitlement to a rating of 30 percent. There is conflicting evidence regarding persistently recurrent epigastric distress. The Veteran has denied such symptoms to medical care providers, but has testified that he has such symptoms three times per week. However, there is no description or finding of substernal or arm or shoulder pain associated with the condition, nor is there an adequate description of considerable impairment of health. The Veteran's symptomatology is most accurately described as two or more of the symptoms for the 30 percent evaluation of less severity. The Veteran has testified that he has anemia. The Board notes that there are findings of anemia in the outpatient treatment records. However, anemia is not a criterion under Diagnostic Code 7346. The Veteran does not have a duodenal ulcer, as contemplated under Diagnostic Code 7305. He does not have gastritis that has been identified by a gastroscope as contemplated under Diagnostic Code 7307. He does not have postgastrectomy syndrome or any other condition that considers anemia as a criterion. Accordingly, the Board finds that Diagnostic Code 7346 is the most appropriate code to evaluate the service-connected disability. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case"); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (one diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained). Moreover, the Veteran's anemia has not been associated with his gastroenteritis by medical evidence. Accordingly, the presence of anemia does not substantiate entitlement to a rating higher than 10 percent. In sum, the Board finds that the service-connected gastroenteritis is manifested by two or more of the symptoms for the 30 percent evaluation of less severity. In light of these findings of fact, the Board concludes that a disability rating higher than 10 percent for the service-connected gastroenteritis is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371. Earlier Effective DatesLaw and Regulations The applicable effective date statute and regulations provide that the proper effective date for increased rating claims is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim for increased rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim for increase. Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. The Federal Circuit has reaffirmed that "the plain language of [section] 5110(b)(2)[...] only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). Entitlement to an effective date earlier than April 30, 2008, for the assignment of a 10 percent rating for instability of the left knee associated with the service-connected left knee disability. As discussed above, as the Board did not assign an effective date for 10 percent rating for lateral instability in the September 2013 rating decision, that aspect of the claim extends to the original date of claim. The effective date is not subject to a final Board decision. Accordingly, consideration of an effective date prior to April 30, 2008, for the assignment of the 10 percent rating granted by the Board is appropriate. After a review of all of the evidence, the Board finds that it is not factually ascertainable that the Veteran's left knee disability was manifested by slight lateral instability prior to April 30, 2008. The current effective date is based on a VA Form 21-526 (Veteran's Application for Compensation and/or Pension) received on that date. While the claim for lateral instability has been pending since January 4, 1999, with respect to the rating of 10 percent, there is no finding or assertion of lateral instability prior to the Veteran's report that he was wearing a brace on his left knee in May 2008. A July 1995 VA general medical examination was unremarkable with the exception of tenderness of the left knee (Record 07/21/1995). A November 2005 VA examination shows that the Veteran was not using a brace at that time (Record 11/19/2005). The knee was found to be stable. Indeed, there was no report of instability when examined in December 2008, after the current effective date (Record 12/30/2008). Based on the lack of report of, or finding of, lateral instability of the left knee prior to the Veteran's report that he was wearing a brace in May 2008, it is not factually ascertainable that the Veteran had slight lateral instability of the left knee prior to the current effective date. In sum, the earliest date as of which it became factually ascertainable that the Veteran's left knee disability was manifested by slight lateral instability is May 30, 2008. Based on this finding of fact, the Board concludes that an effective date prior to April 30, 2008, is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. TDIULaw and Regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran 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). The Board itself cannot assign an extra-schedular rating in the first instance. The Board's consideration is limited to whether to refer the case to the Director of Compensation and Pension Service for an extra-schedular evaluation. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16(a) are not met). The Board observes that while entitlement to an extraschedular disability rating under 38 C.F.R. § 3.321(b)(1), and entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b), are similar, they are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). A TDIU on an extraschedular basis merely requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disability or disabilities. See VAOPGCPREC 6-96. Entitlement to a TDIU an extraschedular basis requires that the Veteran show that service connected disability or disabilities precludes substantially gainful employment; whether the veteran can work in his or her preferred or current position is not the standard. Moreover, VA may find that a veteran is physically capable of substantially gainful employment even if he or she is not currently engaged in such employment. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (Veterans Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Veterans Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Entitlement to TDIU Service connection is currently in effect for a low back disability, gastroenteritis, left knee limitation of motion, and left knee instability. Each is rated at 10 percent. Service connection is in effect for sinusitis, which is rated at 50 percent from November 21, 2012, to March 1, 2021, and 10 percent thereafter. Service connection is also in effect for pseudofolliculitis barbae and an ingrown toenail, each of which is noncompensable. A temporary total rating was assigned for left knee surgical convalescence from February 3, 2009, to May 1, 2009. The combined rating is 30 percent from January 4, 1999, to April 30, 2008; 40 percent from April 30, 2008, to February 3, 2009; 100 percent from February 3, 2009, to May 1, 2009; 40 percent from May 1, 2009, to November 21, 2012; 70 percent from November 21, 2012, to March 1, 2021; and 40 percent thereafter. The Veteran reported on his VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) that he became too disabled to work on March 12, 2020, corresponding to his last date of employment. He reported a high school education and work experience in clerical professions. After a review of all of the evidence, the Board finds that the criteria for TDIU are not met for any period on appeal. For the majority of the appeal period, the Veteran's combined disability rating has been well below the level of 70 percent required for assignment of TDIU based on multiple service-connected disabilities. Even after implementation of the Board's increased rating grants, the current combined rating would still be under 70 percent. Although he attained that level of disability for a little more than eight years, the Board finds that the combined service-connected disabilities have not rendered the Veteran unable to secure or follow a substantially gainful occupation at any time. Notably, the reasons reported for unemployability on the VA Form 21-8940 are anxiety, depression, and PTSD. He reported that "I was put on FMLA by my Doctor for mental health appts and flare ups. I became mentally unable to do the work I use[d] to do. I was actually fired while on FMLA." Unfortunately, the reasons given by the Veteran for his inability to obtain or retain substantially gainful employment are disabilities which are not service-connected. To substantiate entitlement to TDIU, only service-connected disabilities may be considered. In contradiction of his statement on the claim form, the Veteran testified that his gastroenteritis led him to being unemployed. However, this assertion stands in stark contrast to the finding of the VA examiner that the condition should have no impact on the Veteran's ability to work. The Board acknowledges that the Veteran's service-connected disabilities cause occupational impairment. This is contemplated in any compensable rating. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) ("A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment"). The Veteran has reported and testified that his service-connected physical disabilities make it difficult for him to bend and lift. However, he has not stated why this would preclude the clerical duties for which he has work experience. The Board also acknowledges that the Veteran's gastroenteritis requires reasonable accommodations to be made by his employer; however, such accommodates are required under Federal Law. See 42 U.S.C. Chapter 126. Accordingly, the Board that inability to secure or follow a substantially gainful occupation due to service-connected disabilities has not been substantiated. In light of this finding, the Board concludes that TDIU is not warranted, and that referral of the claim for extraschedular consideration is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.