Citation Nr: 21064617 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-14 815 DATE: October 21, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee meniscal tear status post-surgery residuals with degenerative joint disease is denied. Entitlement to a rating in excess of 10 percent for right knee meniscal tear status post-surgery residuals with degenerative joint disease is denied. Entitlement to a rating in excess of 10 percent for left knee instability is denied. Entitlement to a separate 10 percent rating, but not higher, for left knee symptomatic meniscectomy is granted. Entitlement to a separate 10 percent rating, but not higher, for right knee symptomatic meniscectomy is granted. Entitlement to a total disability rating due to individual unemployability by reason of service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. A left knee disability was mainly manifested by pain and discomfort, but has not been manifested by flexion limited to 45 degrees or less for an objectively sustained period, extension limited to 10 degrees or greater for an objectively sustained period, ankylosis, impairment of the tibia and fibula, or genu recurvatum. 2. The evidence of record shows slight left knee instability that has not required an assistive device prescribed by a medical provider and is not more than slight. 3. A right knee disability was mainly manifested by pain and discomfort; it has not been manifested by flexion limited to 45 degrees or less for an objectively sustained period, extension limited to 10 degrees or greater for an objectively sustained period, ankylosis, objective evidence of recurrent subluxation, lateral instability, impairment of the tibia and fibula, or genu recurvatum. 4. Left and right knee meniscectomies result in symptoms of locking, which are not separate compensated by the limitation of motion ratings. 5. The preponderance of the competent and credible evidence of record indicates that the service-connected disabilities do not preclude the Veteran from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for left knee meniscal tear status post-surgery residuals with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5010, 5256-5263. 2. The criteria for entitlement to a rating in excess of 10 percent for right knee meniscal tear status post-surgery residuals with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5010, 5256-5263. 3. The criteria for entitlement to a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for entitlement to a separate 10 percent rating, but not higher, for left knee symptomatic meniscectomy have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5259. 5. The criteria for entitlement to a separate 10 percent rating, but not higher, for right knee symptomatic meniscectomy have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5259. 6. The criteria for entitlement to a total disability rating due to individual unemployability by reason of service-connected disability (TDIU) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to October 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018 and February 2021, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. As an initial matter, the Board notes that in a February 2021 Board remand, for a second time, requested that the Veteran be asked to complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, so that VA could determine the Veteran's employment history, such as when he was employed, and whether it was full time employment. However, to date, the Veteran has not submitted a completed form and did not provide good cause for not doing so. That form requested employment information that is relevant to claims for TDIU. Therefore, the Board must proceed to decision without the benefit of that information. The duty to assist is not a one-way street. If a Veteran wants help, he cannot passively wait for it in those circumstances where he has information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, the Board finds that there has been substantial compliance with the Board remand instructions, and an additional remand to comply with the Board remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating 1. Entitlement to a rating in excess of 10 percent for left knee meniscal tear status post-surgery residuals with degenerative joint disease. 2. Entitlement to a rating in excess of 10 percent for right knee meniscal tear status post-surgery residuals with degenerative joint disease. 3. Entitlement to a separate 10 percent rating for left knee meniscectomy. 4. Entitlement to a separate 10 percent rating for right knee meniscectomy. Disability ratings are based on VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. A rating is assigned by comparing the extent to which a service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the symptomatology, with criteria established for the percentage ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2. If two ratings are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The rating of the same disability under different diagnostic codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5256, a 40 percent rating is warranted for ankylosis of the knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is warranted for extremity unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Diagnostic Code 5257 provides that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of a knee. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Subluxation of the patella is the incomplete or partial dislocation of the knee cap. Rykhus v. Brown, 6 Vet. App. 354 (1993). Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Under Diagnostic Code 5260, limitation of flexion of the knee is rated 10 percent for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the knee is rated 10 percent for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Pursuant to Diagnostic Code 5262, a 30 percent rating is warranted when there is malunion of the tibia and fibula, with marked knee or ankle disability. A schedular maximum 40 percent rating is warranted when there is nonunion of the tibia and fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The words slight, moderate, and severe as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that decisions are equitable and just. 38 C.F.R. § 4.6. Separate ratings may be assigned for compensable limitation of both flexion and extension, or for limitation of motion and instability or subluxation of the knee, or meniscal pathology. However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating. 38 C.F.R. § 4.14; VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). The Board notes that Diagnostic Code 5003, 5010, 5257 and 5262 were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The amended Diagnostic Codes may not be applied prior to the effective date of February 7, 2021. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7 2003 (Nov. 19, 2003). However, the Board finds it may still apply the prior version of the Diagnostic Codes to the entire period on appeal, as the Board is not prohibited from applying a prior regulation in effect during the pendency of a claim to the period on or after the effective date of the new version of the regulation. Thus, the Board finds that it may still apply the prior version of 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257 and 5262 to the period on or after February 7, 2021, which is the effective date of the amended criteria, if this would afford a more favorable outcome Under the previous criteria, Diagnostic Code 5010 provides that traumatic arthritis as shown by x-ray studies is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Code 5010. When the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Effective February 7, 2021, Diagnostic Code 5010 was amended to provide that post-traumatic arthritis is to be rated based on limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. The Veteran is currently assigned a 10 percent rating for left knee meniscal tear status post-surgery residuals with degenerative joint disease, pursuant to Diagnostic Code 5010-5260. The Veteran is currently assigned a 10 percent rating for right knee meniscal tear status post-surgery residuals with degenerative joint disease, pursuant to Diagnostic Code 5010-5260. The Veteran asserts that the left and right knee disabilities are more severe than that represented by the assigned ratings. As an initial matter, the Board notes that, in previous Board Remands, the Board found VA knee examinations from February 2014 and July 2019 to be inadequate for rating purposes. Thus, the February 2014 and July 2019 VA examinations will not be considered in adjudication of this claim. Those examinations do not otherwise support the assignment of any higher or separate ratings. At a July 2007 VA examination, the Veteran was noted as having meniscectomies in both knees in the 1970s. Since that surgery, the Veteran reported no improvement in pain or locking. The Veteran also noticed that the knees gave way at times. On physical examination, the Veteran was able to walk without a limp or the use of an assistive device. There was no swelling, redness, tenderness, or deformity noted in either knee. He was able to squat fully. The Veteran had limitation in prolonged standing, running, jogging, and climbing stairs. June 2007 X-Rays were essentially negative for both knees. At a September 2008 VA examination, the Veteran complained of chronic pain in both knees, aggravated by prolonged standing, kneeling, climbing, and squatting. On physical examination, there was no localized tenderness, swelling, deformity, or instability. Range of motion in both knees was to 0 degrees extension and 135 degrees flexion. There was no pain in range of motion. March 2010 X-Rays found bilateral degenerative joint disease of the knees. An April 2010 orthopedic surgery note shows the Veteran as being neurovascularly intact bilaterally with scars visible on the knees from surgeries in the past. Right knee active range of motion was 0 to 115 degrees. Left knee active range of motion was 0 to 110 degrees. There was slight effusion in the left knee and pain with palpitation on the medial joint line, with twisting in the varus and valgus position. A February 2014 X-Ray found stable mild medial and lateral compartment degenerative changes in both knees. A May 2016 orthopedic surgery note shows that the Veteran received serial cortisone injections that give him pain relief for about three months. On physical examination, range of motion was 0 to 130 degrees. No effusion was noted. At an April 2021 VA examination, the Veteran reported having intermittent locking sensations bilaterally, pain, stiffness, and the left knee giving out at times. The Veteran was noted as having right knee flexion to, at worst, 115 degrees and extension to 0 degrees; and left knee flexion to, at worst, 115 degrees and extension to 0 degrees. The Veteran was not noted as having muscle atrophy, ankylosis, or tibial or fibular impairment. The Veteran was found to have recurrent subluxation or persistent instability in the left knee only. He also had a bilateral meniscus condition with recurring joint pain, effusion, and locking sensation. The Veteran underwent a meniscectomy in both knee in the late 1970s. The Veteran did not use any assistive devices. For the period on appeal, the Board finds that the preponderance of the evidence is against the assignment any higher rating under Diagnostic Code 5260 for limitation of flexion of either knee. The evidence does not show limitation of flexion to 45 degrees in either knee, at any time during this appeal, or that any pain or other functionally limiting factors limited flexion to 45 degrees. Therefore, an increased rating for limitation of flexion is not warranted as the contemporaneous evidence of record does not warrant a rating in excess of 0 percent in either knee. The Board further finds that the preponderance of the evidence is against the assignment of a compensable rating under Diagnostic Code 5261 for limitation of extension of the right or left knee. The evidence does not show that Veteran's left or right knee disability has been manifested by limitation of extension to 10 degrees or worse commensurate with a 10 percent rating. Therefore, a higher or separate rating for limitation of extension is not warranted as the contemporaneous evidence of record does not warrant an increased rating in either knee. The Board finds that a separate rating is not warranted for meniscal pathology pursuant to Diagnostic Codes 5258 as the Veteran is not shown to have a dislocated semilunar cartilage. The Veteran is shown to have undergone bilateral meniscectomy in the 1970s, and thus to have removed semilunar cartilage. The evidence shows that the Veteran has the symptoms of locking and effusion due to the semilunar cartilage removal that is not compensated by the limitation of motion ratings. Therefore, there is symptomatic removal of the bilateral semilunar cartilage that is not duplicative of symptomatology used to assign any other rating, and 10 percent ratings are warranted for right and left symptomatic removal of semilunar cartilage. That is the highest rating available under Diagnostic Code 5259.. Throughout the entire appeal period, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5262 (nonunion or malunion of the tibia and fibula), and 5263 (genu recurvatum) are not applicable, as the medical evidence does not show that the Veteran has those conditions in either knee. Accordingly, with a noncompensable level of limitation of motion of the knees, a 10 percent rating, but not higher, is warranted for the painful limitation of motion shown in each knee under Diagnostic Code 5010. In reaching the foregoing conclusions, the Board has considered the evidence of functionally limiting factors caused by limitation of motion due to painful motion, excess motion, weakened motion, fatigability, incoordination, and flare up. Deluca v. Brown, 8 Vet. App. 202 (1995). While the Veteran has shown objective evidence of pain throughout the appeal, the record does not show that his pain has resulted additional functional limitation consistent with a higher disability rating. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that separation 10 percent ratings, but not higher, for right and left symptomatic semilunar cartilage removal are warranted. The Board finds that the preponderance of the evidence is against the assignment of any higher or additional separate ratings for the right and left knee disabilities based on limitation of motion and the claims for increased ratings must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to a rating in excess of 10 percent for left knee instability. Diagnostic Code 5257 provides that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of a knee. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Subluxation of the patella is the incomplete or partial dislocation of the knee cap. Rykhus v. Brown, 6 Vet. App. 354 (1993). Effective February 7, 2021, the Schedule of Ratings for the Musculoskeletal System was revised. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. The first is for recurrent subluxation or instability. The second is for patellar instability. For recurrent subluxation or instability, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes 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 assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) 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 assigned 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. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Regarding patellar instability under the revised Diagnostic Code 5257, 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 warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1)). 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). to be codified at Note (2). The Veteran is currently assigned a 10 percent rating for left knee status post-surgery residual instability pursuant to Diagnostic Code 5257. The Board acknowledges that, as early as his VA examination in July 2007, the Veteran complained of pain, locking, and the knee giving away at times. However, the evidence does not show more than occasional giving way or any symptoms that would lead the Board to conclude that any recurrent lateral instability has been any more than slight during the entire period under review pursuant to the version of Diagnostic Code 5257 in effect prior to the February 7, 2021. The Board finds that the preponderance of the evidence is against a finding of more than slight instability as objective signs or indicators of instability have not been found on examination, that would warrant a finding of more than slight recurrent lateral instability. In addition, no examiner has found the instability to be moderate or severe. Additionally, there is no evidence of record that suggests the Veteran has been prescribed a brace or assistive device for ambulation by a medical provider. Therefore, a higher rating pursuant to the changes made to Diagnostic Code 5257 effective February 7, 2021 is not warranted as the contemporaneous evidence of record does not warrant an increased rating in the left knee. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher rating for a left knee disability based on instability and the claim for an increased rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to a total disability rating due to individual unemployability by reason of service-connected disability (TDIU). TDIU may be assigned, if the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one service-connected disability it is rated 60 percent or more, and that if there are two or more service-connected disabilities at least one is rated 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (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 (1993). The Veteran's service-connected disabilities do not include a single service-connected disability of 60 percent or more or a single service-connected disability of 40 percent with combined service-connected disability to 70 percent, even when the knee disability are combined into a single rating as disabilities of the same system. Thus, the threshold requirements for consideration of the assignment of TDIU rating pursuant to 38 C.F.R. § 4.16(a) are not met. If the applicable percentage standards set forth in 38 C.F.R. § 4.16(a) are not met, but evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for consideration of the assignment of TDIU. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board cannot assign a rating pursuant to 38 C.F.R. § 4.16(b) in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Therefore, the Board must specifically adjudicate whether to remand a case for referral to the Director for consideration of the assignment of TDIU pursuant to 38 C.F.R. § 4.16(b). Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record show some factor which places the Veteran in a different position than other Veterans with the same rating. When the Board conducts a TDIU analysis, it must take into account the individual's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2016). A Veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a Veteran is entitled to TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and maintain employment. Thus, 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board finds that the evidence of record does not indicate that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities, alone or in combination. Because of a failure on the part of the Veteran to assist in the development of this claim, it is unclear, at best, that the Veteran is unable to find substantially gainful employment. In May 2019 and February 2021, VA notified the Veteran that he needed to complete and return VA Form 21-8940, to provide an employment history and employment information. To date, the Veteran has not provided that information. The Board cannot verify the Veteran's current employment status nor his educational level. The record indicates that as recently as August 2018, the Veteran was employed full time and reported pain which did not interfere with work duties. At a February 2014 VA examination, the Veteran's knee disabilities were found to have no impact on the Veteran's ability to work. At a July 2019 VA scar examination, the Veteran's service-connected surgical scars were found to result in no restrictions for required job activities. At a July 2019 VA knee examination, the Veteran's knee disabilities were found to limit the Veteran to sedentary work, meaning work that involved sitting most of the time, but may involve walking or standing for brief periods of time. At an April 2021 VA examination, the Veteran was found able to perform sedentary activities, but would have difficulty in occupations that required heavy lifting or prolonged hours on his feet. After reviewing the entire record, the Board concludes that entitlement to TDIU is not warranted. The most probative evidence of record shows that, solely considering the service-connected disabilities, the Veteran is more likely able to obtain and maintain gainful employment, if that employment did not require manual labor, or long periods of standing. The Board finds that the evidence does not show anything out of the ordinary, or not average, in the Veteran's situation as a result of the service-connected disabilities. While the Veteran may be unable to perform work such as manual labor, or that requires prolonged walking, standing, climbing, carrying, lifting, and use of certain tools, the weight of the probative evidence of record does not indicate that he is unable to perform some type of substantially gainful employment in a sedentary setting, such as office or sedentary work. Overall, in terms of service-connected disabilities, the Veteran is not able to lift or carry items, or stand, climb, or walk for prolonged periods of time. Otherwise, the service-connected disabilities have not been shown to cause significant occupational impairment that would result in unemployability. The VA examinations indicate that the service-connected disabilities only have mild effects on the Veteran's ability to work. Overall, the record suggests that the service-connected disabilities do not preclude the Veteran from work that does not require manual labor. In arriving at this decision, the Board has considered the Veteran's background. Considering the overall disability picture, and the Veteran's history of employment to the extent that history is available as the Veteran has not supplied the information despite repeated requests, the Board finds that preponderance of the evidence shows that the Veteran is not unemployable solely due to service-connected disabilities. The impact of the nonservice-connected disabilities may not be considered under the criteria for a TDIU, which only considers service-connected disabilities. In making that determination, the Board is not refuting the Veteran's noted physical limitations or the Veteran's contentions that the service-connected disabilities affect the ability to work. However, the rating schedule adequately contemplates the symptoms at issue. The Veteran has not provided any vocational expert evidence which supports a finding of an inability to maintain substantially gainful employment as a result of the service-connected disabilities. In addition, the Veteran has not provided evidence regarding employment history, training, or education that would be used in adjudicating this claim. Additional evidence could not be obtained because the Veteran did not respond to several inquiries regarding this matter. As a result, the current employment and educational status of the Veteran is unknown. Accordingly, because the preponderance of the evidence is against the claim, the claim for TDIU must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.