Citation Nr: 21064376 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 14-34 404A DATE: October 20, 2021 ORDER 1. Entitlement to increases in the (10 percent prior to April 28, 2021, and 20 percent from that date) staged ratings assigned for left knee degenerative joint disease (DJD) based on limitation of flexion is denied. 2. Entitlement to increases in the (0 percent prior to April 28, 2021, and 30 percent from that date) staged ratings assigned for left knee DJD based on limitation of extension is denied. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability prior to April 29, 2021 is denied. FINDINGS OF FACT 1. Prior to April 28, 2021, the Veteran's left knee DJD is not shown to have been manifested by flexion limited to 30 degrees; extension limited at 10 degrees; additional limitations due to pain, weakened movement, excessive fatigability with use, or incoordination; or recurrent subluxation or instability. 2. From April 28, 2021, the Veteran's left knee DJD is not shown to have been manifested by flexion limited to 15 degrees; extension limited at more than 20 degrees; separately ratable complications or symptoms or impairment not encompassed by the schedular criteria are not shown or alleged; additional limitations due to pain, weakened movement, excessive fatigability with use, or incoordination are not shown; and sprain, incomplete ligament, or repaired complete ligament tear causing persistent instability, and a brace and/or assistive device prescribed by a medical provider for ambulation; unrepaired or failed repair of complete ligament tear causing persistent instability, and an assistive device or bracing prescribed by a medical provider for ambulation; or 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, are not shown. 3. The Veteran's service-connected depressive disorder (rated 50 percent from April 16, 2012); below knee amputation, right (40 percent); left knee limitation of extension (0 percent prior to April 28, 2021, and 30 percent from that date); shell fragment wounds, left calf and foot (20 percent); left knee limitation of flexion (10 percent prior to April 28, 2021, and 20 percent from that date); bilateral hearing loss (0 percent prior to April 29, 2021, and 20 percent from that date); constant tinnitus (10 percent); left knee instability (10 percent); and hepatitis, multiple shell fragment wounds, and suppurative otitis media (0 percent, each); are rated 70 percent combined prior to April 16, 2012; 80 percent combined from April 16, 2012 to April 28, 2021; 90 percent from April 28, 2021 to April 29, 2021; and 100 percent combined from that date (rendering entitlement to a TDIU rating from that date moot); they are not shown to be of such nature and severity as to render him unable to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Ratings for left knee DJD limitation of flexion in excess of 10 percent prior to April 28, 2021, and in excess of 20 percent from that date, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5003, 5257, 5260. 2. Ratings for left knee DJD limitation of extension in excess of 0 percent prior to April 28, 2021, and/or in excess of 30 percent from that date, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.71a, Codes 5003, 5257, 5261. 3. The schedular criteria for a TDIU rating are met throughout prior to April 29, 2021, but a TDIU rating prior to that date was not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1969 to April 1971. These matters are before the Board on appeal from a July 2011 Department of Veterans Affairs (VA) rating decision which, in pertinent part, continued a 10 percent rating for left knee DJD and denied a TDIU rating. A December 2015 rating decision assigned a 0 percent rating for left knee DJD limitation of extension, effective December 10, 2014. In August 2017, the Veteran testified at a Board hearing; a transcript is in the record. In August 2018, the matters were remanded for further development. In June 2020, the Veteran was informed that he could request a new hearing because the Veterans Law Judge who presided at the August 2017 hearing was no longer employed by the Board. He did not request a new hearing. In January 2021, the matters were remanded again for additional development. A July 2021 rating decision increased the rating for left knee DJD limitation of extension to 30 percent, increased the rating for left knee DJD n limitation of flexion to 20 percent, and assigned a separate 10 percent rating for left knee instability, each effective April 28, 2021. 1. Entitlement to increases in the (10 percent prior to April 28, 2021, and 20 percent from that date) staged ratings assigned for left knee DJD limitation of flexion is denied. 2. Entitlement to increases in the (0 percent prior to April 28, 2021, and 30 percent from that date) staged ratings assigned for left knee DJD limitation of extension is denied. The Board notes at the outset that the Veteran has a right below-the-knee amputation and wears a right leg prosthesis. On August 2010 VA examination, the Veteran reported having severe left knee pain and stiffness on daily, affecting his ability to perform his job as a driller, which required him to climb ladders, carry heavy equipment up and down cranes, and tote heavy metal cables. He reported that his knee disability was aggravated by such repetitive duties; that he received steroid injections every 90 days with a temporary relief of pain; and that he took NSAIDs with minimal improvement. On physical examination, the Veteran walked with a non-antalgic gait wearing a right prosthetic limb and a hinged left knee brace. Generalized bony joint enlargement and mild quadriceps atrophy were noted. There was no tenderness or effusion. Flexion was to 120 degrees and extension was to 0 degrees. Drawer's test was negative and there was no laxity. There was severe crepitus. McMurray's test was without apprehension or pain. Pain was noted at the extremes of flexion and extension, and there was no additional limitation following repetitive range of motion testing. On June 2012 evaluation, the Veteran reported having knee pain that was dull with sharp exacerbations accompanied by popping. He reported difficulty climbing and descending stairs, and beginning to ambulate upon waking up. He reported that the knee gave way at times. He reported he was able to walk for about 20 feet before the knee became painful enough to require him to sit down or use assistance such as a cane. On physical examination, there was moderate retropatellar crepitus with pain to full extension and flexion. Range of motion was from 5 degrees to 120 degrees. There was tenderness to the medial joint line on direct palpation. McMurray's, anterior drawer, posterior drawer, and Lachman tests were negative. On September 2013 VA examination, the Veteran reported daily knee pain; inability to rise from the floor without holding onto something; and needing to slow down or sit during flare-ups. On physical examination, flexion was to 140 degrees or greater with no objective evidence of painful motion, and there was no objective evidence of painful motion on extension. There was disturbance of locomotion but no additional limitation in range of motion after repetitive use testing. There was no tenderness or pain to palpation of the knee. Muscle strength testing was normal. Joint stability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation. There was no history of left knee surgery. He reported regular use of a knee brace which helped with pain relief. On a December 10, 2014 Disability Benefits Questionnaire (DBQ), the Veteran reported progressive left knee pain that increased with activity. He reported functional impairment including decreased walking ability and inability to walk on uneven ground. On physical examination, flexion was to 123 degrees and extension was to 5 degrees. There was no change in range of motion after repetitive testing. There was mild to moderate tenderness to palpation at the medial joint line. There was no history of recurrent subluxation or lateral instability. A history of intermittent swelling of the left knee was noted. Joint stability testing was normal. Based on this evidence, a December 2015 rating decision granted service connection for left knee DJD with limitation of extension, rated 0 percent, effective December 10, 2014. On October 2019 VA examination, the Veteran reported severe left knee pain, and falling frequently and injuring himself. He reported having left knee flare-ups depending on activity and precipitated by too much normal activity. He reported inability to knee, squat, or stoop; sit still or stand for long periods of time without severe pain and "locking up" of the knee; or walk more than one-quarter mile without pain and a flare-up. On physical examination, left knee flexion was to 120 degrees and extension was to 0 degrees. Pain was noted on flexion and extension but did not result in or cause functional loss. There was evidence of pain with weightbearing, with non-weight bearing, and in passive range of motion. There was no objective evidence of localized tenderness or pain on palpation of the knee or of crepitus. On repetitive use testing, flexion was to 110 degrees and extension was to 0 degrees, with functional loss caused by pain. Muscle strength was 4/5 for flexion and extension; there was no muscle atrophy. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. He reported constant use of a left knee brace for stability and ambulation. On September 2020 evaluation, the Veteran reported constant deep medial and anterior left knee pain, aggravated by bending, daily activities, standing and walking. He reported being able to walk about 10 to 20 minutes. He denied having weakness or numbness. On April 28, 2021 VA examination, the Veteran reported left knee pain, stiffness, swelling, giving out, and inability to stand on the left leg without the right prosthetic. He reported having daily flare-ups of increased pain with a duration of hours during which it is hard to walk. He reported that the knee gives out and caused him to fall and hit a bush, and that he needs help getting out of the shower. He reported having knee swelling a few times a week. On physical examination, flexion was to 100 degrees and extension was to 10 degrees (in both active and passive motion), with pain exhibited on both ranges of motion. There was evidence of pain with weightbearing, non-weight-bearing, active and passive motion, on rest/non-movement, and causing functional loss of increased difficulty walking. There was objective evidence of crepitus and moderate pain to palpation. There was no additional loss of function or range of motion following repetitive use testing. Pain, fatigability, and weakness were noted to significantly limit functional ability with repeated use over time and with flare-ups; estimated range of motion after repeated use over time and with flare-ups was flexion to 20 degrees and extension to 20 degrees. Additional contributing factors of disability included interference with sitting and standing, swelling, less movement than normal, and instability of station, resulting in ability to knee, swelling, pain with prolonged sitting and standing, and difficulty getting out of a chair. There was no muscle atrophy or ankylosis. Joint stability testing showed 1+ lateral instability, and the remaining testing was normal; there was no ligament tear (sprain), prescription for any device to assist with ambulation, or recurrent patellar instability. Left knee strength was 4/5. There was no history of surgery. The Veteran reported constant use of a knee brace. Based on this evidence, a July 2021 rating decision granted a separate 10 percent rating for left knee instability, an increased to 30 percent rating for limitation of extension, and an increased to 20 percent rating for limitation of flexion, each effective April 28, 2021. Additional VA and other treatment records show symptoms similar to those reported on the VA examinations described above. The Veteran has also submitted lay statements attesting to the severity of his knee problems. Revisions were made to certain regulations governing ratings for musculoskeletal disabilities, effective February 7, 2021. As the Veteran's appeal was pending at the time of this revision, from that date, he is entitled to a rating under the old or the new criteria, whichever are more favorable. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the 38 C.F.R. § 4.14 rule against pyramiding does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups). Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As noted above, some revisions to musculoskeletal Codes have been made effective February 7, 2021. The Veteran's left knee disability is rated under (among other Codes) Code 5257, which was revised. However, the record does not reflect that an earlier or higher rating is warranted under either the old or new version of Code 5257. Knee disabilities are rated under Codes 5256 to 5263. Under Code 5260, limitation of knee flexion warrants a [maximum] 30 percent rating when limited to 15 degrees, a 20 percent rating when limited to 30 degrees, a 10 percent rating when limited to 45 degrees, and a 0 percent rating when limited to 60 degrees (or lesser limitation). Under Code 5261, limitation of knee extension warrants a 40 percent rating when limited ar 30 degrees; a 30 percent rating when limited at 20 degrees; a 20 percent rating when limited at 15 degrees; a 10 percent rating when limited at 10 degrees; and a 0 percent rating when limited at 5 degrees (or for lesser limitation). Under the old criteria for Code 5257, a 30 percent rating is warranted for severe recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. Under the new criteria for Code 5257, for recurrent subluxation or instability, a 30 percent rating is warranted for 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 20 percent rating is warranted for sprain, incomplete ligament, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is warranted for 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 or bracing for ambulation. Also under the new criteria for Code 5257, for patellar instability, a 30 percent rating is warranted for 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 walker. A 20 percent rating is warranted for 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 10 percent rating is warranted for 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. Rating the knee disabilities under Codes 5256, 5258, 5259, 5262, 5263 is inappropriate in this case as the Veteran's left knee disability does not include the pathology required for rating those Codes (ankylosis, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. Prior to April 28, 2021, while the Veteran reported chronic knee pain and stiffness, there was no objective evidence of limitation of knee flexion limited to 30 degrees, to warrant a 20 percent rating under Code 5260 for the left knee. Likewise, there was no objective evidence of knee extension limited at 10 degrees, to warrant a compensable, 10 percent, rating under Code 5261 for the left knee. These ratings consider factors such as pain and use (repetitive motion), as well as the degree of severity of the disability during flare-ups. The 10 percent rating assigned under Code 5260 and the 0 percent rating assigned under Code 5261 account for all left knee pathology and functional limitations shown prior to April 28, 2021. On the examinations and treatment reports of record, tests for left knee instability were all normal, and subluxation was not found. Therefore, a separate rating under Code 5257 prior to April 28, 2021 is not warranted. Continuing the analysis, at no time is there objective evidence of limitation of knee flexion to 15 degrees, so as to warrant a 30 percent rating under Code 5260 for left knee flexion limitation, even with factors such as pain and use (repetitive motion), as well as the degree of severity of the disability during flare-ups, considered. Likewise, there is no evidence that extension is limited at more than 20 degrees. The ratings assigned encompass the level of severity of disability shown at any time by the record; the limitation estimated by the examiner present on use or with flare-ups. Finally, on the examination and treatment reports of record, tests for left knee instability showed recurrent instability that does not rise to the level of moderate recurrent subluxation or lateral instability, and does not require a prescription from a medical provider for a brace, cane, or walker (although the Veteran has reported use of both); therefore, the next higher, 20 percent, rating under Code 5257 is not warranted. The Board notes the lay statements submitted by the Veteran in support of this claim. They describe the types of problems that result from the left knee disability. The symptoms and impairment described are consistent with the criteria for the ratings assigned, and do not support that any higher rating is warranted. The Board finds that increases in the staged ratings for left knee disability is not warranted at any time during the appeal period under consideration. The preponderance of the evidence is against these claims, and the appeals in the matters must be denied. 3. Entitlement to a TDIU rating prior to April 29, 2021 is denied. A TDIU rating may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability". Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice- connected disabilities on his ability to function. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. The Veteran's service-connected disabilities include: depressive disorder (rated 50 percent from April 16, 2012); below knee amputation, right (40 percent); left knee DJD with limitation of extension (0 percent prior to April 28, 2021, and 30 percent from that date); shell fragment wounds, left calf and foot (20 percent); left knee DJD with limitation of flexion (10 percent prior to April 28, 2021, and 20 percent from that date); bilateral hearing loss (0 percent prior to April 29, 2021, and 20 percent from that date); constant tinnitus (10 percent); left knee instability (10 percent); and hepatitis, multiple shell fragment wounds, and suppurative otitis media (0 percent, each). The combined rating is 70 percent prior to April 16, 2012; 80 percent from April 16, 2012 to April 28, 2021; 90 percent from April 28, 2021 to April 29, 2021; and 100 percent from that date. [The Board notes that a 100 percent combined schedular rating renders entitlement to a TDIU rating moot from April 29, 2021, therefore the period from that date is not before the Board.] As the schedular rating requirement for TDIU in 38 C.F.R. § 4.16(a) are met, the analysis turns to whether the service-connected disabilities rendered the Veteran unemployable prior to April 29, 2021. The Veteran has not worked full-time for certain extended periods during the period for consideration. However, this of itself does not establish that the service-connected disabilities render him unemployable. In his July 2010 TDIU application, the Veteran stated that he became too disabled to work and last worked full time in November 2009 due to his right knee, left knee, and left calf/foot disabilities. He stated that he had not tried to obtain employment since he became too disabled to work. He reported having a high school education with one year of college, and he worked in construction for over 30 years. On August 2010 VA examination, the Veteran reported being unemployed since November 2009. He reported missing 6 months from work in the previous 12 months. He reported he was laid off from his last job due to left knee limitations for climbing up and down "rigs". He reported performing towing jobs since being laid off. The examiner opined that the Veteran's left leg shell fragment wounds, otitis media, hepatitis, and right below knee amputation had no significant effects on his occupation and would not limit any type of employment. The examiner opined that the left knee disability caused decreased endurance for stair and ladder climbing and prolonged weight bearing, and would limit employment that requires heavy physical exertion or climbing ladders, but would not limit employment that requires light or sedentary duties. On August 2010 VA audiological examination, the examiner opined that the Veteran's bilateral hearing loss and tinnitus cause significant effects on his occupation in that he is unable to hear in meetings unless he sits in the front of the room, but he still misunderstands conversations. On June 2012 VA PTSD examination, the Veteran reported that he was working in heavy construction until April 2012 when he was laid off. He reported that he was unable to perform the activities any longer due to knee pain. He reported that he was looking for work but was unable to do the things he once was able to do. He reported that over the last few years his pay grade was decreasing as he was put under restrictions due to knee struggles. The examiner opined that the Veteran's depressive disorder and alcohol abuse (secondary to left knee pain and depression) result in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. On September 2013 VA examination, the examiner opined that the Veteran's left knee disability impacts his ability to work and results in functional impairment including no distance walking, limited bending/kneeling/squatting, and difficulty climbing and descending ladders and stairs. On December 2014 treatment, the Veteran reported that he gave up his job in construction about 2 years earlier due to knee pain, and he was now limited to part-time work driving heavy equipment such as a ground leveler. The provider opined that the Veteran's left knee disability impacts his ability to perform occupational tasks due to limited weight bearing, carrying, standing, walking, climbing, squatting, and kneeling. On January 2016 VA audiological examination, the examiner opined that the Veteran's hearing loss impacts his ordinary conditions of daily life including his ability to work due to a frequent need for repetition in conversations and difficulty understanding speech in movies and on television. At the August 2017 Board hearing, the Veteran testified that his previous employer had to fire him because he might hurt somebody due to his disabilities and the medication he took to treat them. He testified that he was doing odd jobs for friends hauling cars or other items. He testified that he would be able to have a steady job based on his service-connected left knee if it were "in an office or something", but he had never worked in any sedentary office kind of job and he did not know how to turn on a computer. On October 2019 VA examination, the examiner opined that the Veteran's knee disability impacts his ability to perform occupational tasks such that he is unable to kneel, squat, or stoop; he is unable to sit still or stand for long periods of time without severe pain and "locking up" of the knee; and he is unable to walk more than one-quarter mile without pain and a flare-up. The examiner opined that the Veteran is capable of working using assistive devices and performing light work with lifting up to 10 pounds. On April 2021 VA examinations, the examiners opined that the Veteran's left knee disabilities, shell fragment wounds of the left calf and foot, and right below-the-knee amputation cause him difficulty with standing, walking, sitting, climbing stairs, driving, lifting, bending, squatting, kneeling, and doing high impact activities; and he falls at times and has difficulty getting out of the shower without his prosthetic; he is depressed and angry due to his pain and being unable to have quality of life and he drinks to help with the pain; and his suppurative otitis media would cause difficulty with working in higher elevations or in water such as swimming or rescue diving. On April 2021 VA mental disorders examination, the examiner opined that the Veteran's unspecified depressive disorder and moderate alcohol use disorder result in occupational and social impairment with reduced reliability and productivity. The examiner opined that the Veteran's daily alcohol use solely appears to account for his functional impairment; his daily drinking would affect his ability to maintain regular employment and affects his employability as it makes him less reliable and productive as well as places him in danger in terms of drinking and driving. On April 2021 VA audiological examination, the examiner opined that the Veteran would not be able to function in an occupational environment without properly fit hearing aids and assistive devices; he has a significant hearing impairment that would result in significant difficulty communicating. VA examiners have opined that the Veteran's service-connected bilateral knee disabilities and shell fragment wounds to the left calf and foot impact his ability to engage in physical types of work. A June 2012 VA examiner opined that the Veteran's depressive disorder and alcohol abuse result in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication; and an April 2021 VA examiner opined that the depressive disorder and alcohol use result in occupational and social impairment with reduced reliability and productivity. VA examiners in August 2010 and April 2021 opined that his bilateral hearing loss causes significant effects on his occupation in that he is unable to hear in meetings unless he sits in the front of the room, but he still misunderstands conversations, and he would not be able to function in an occupational environment without properly fit hearing aids and assistive devices. At the outset that Board finds that various increased limitations due to service-connected disabilities described first on the April 2021 examinations were not shown earlier, so they are not for consideration is assessing whether a TDIU rating was warranted prior to April 29, 2021. These include the significant additional limitations opined due to the Veteran's service-connected mental health with alcohol use and ear/hearing disabilities. The overall disability picture presented prior to April 29, 2021 suggests that the symptoms and impairment associated with the Veteran's service-connected disabilities would likely preclude work in occupations that require strenuous physical labor/prolonged standing, sitting, or walking (based on the Veteran's reports) or any significant interpersonal interaction with co-workers and supervisors. The service-connected disabilities are not shown to be such that due to the disabilities he would be precluded from participating in the types of work that do not require significant interpersonal relationships with co-workers or supervisors, substantial physical exertion/lifting, or prolonged standing, but can be performed seated or seated with some limited standing/walking. Examples of such work (consistent with his completion of 1 year of college, per his TDIU application, and his occupational experience which includes construction work), would include light assembly, work that can be done on a computer, work using a telephone taking orders, sales, etc. There is nothing in the record suggesting he would be incapable of engaging in such forms of employment if they did not require significant interpersonal relationships (and many such types of employment can be done from home/using electronic devices). In summary, the overall record does not support that prior to April 29, 2021, due to his service-connected disabilities, the Veteran was rendered unable to obtain and maintain substantially gainful employment consistent with his education and experience. The Board has considered the Veteran's statements in support of the appeal, and acknowledges that due to his service-connected disabilities he clearly had work limitations (in for the physically demanding types of work like the construction work in which he engaged) and that related functional impairment limits his occupational opportunities, but is unable to find that he is shown to be precluded from engaging in regular substantially gainful employment due to his service-connected disabilities alone. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.