Citation Nr: 21065250 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-01 638 DATE: October 25, 2021 ORDER Entitlement to a rating of 100 percent for the combined effects of an acquired psychiatric disorder and residuals of a traumatic brain injury (TBI) is granted, effective June 16, 2016. Entitlement to a separate 30 percent rating for symptoms of a traumatic brain injury manifesting in vertigo, as due to an ear condition is granted, effective November 5, 2020. Entitlement to a rating of total disability based on individual unemployability is granted, effective December 15, 2009. REMANDED Entitlement to an increased rating for a left knee disability is remanded. FINDINGS OF FACT 1. The evidence demonstrates that, as of June 16, 2016, but no earlier, the combined effects of the Veteran's acquired psychiatric disorders and traumatic brain injury resulted in total social and occupational impairment. 2. Effective November 5, 2020, the evidence is at least in equipoise as to whether symptoms of vertigo are attributable to an ear condition, as due to the Veteran's traumatic brain injury and these symptoms are not contemplated by the rating criteria of another service-connected disability; the Veteran experiences vertigo with occasional staggering and falls. 3. The evidence of record demonstrates that he combined effects of his service-connected disabilities rendered him unable to secure or follow gainful employment as of December 15, 2009. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 100 percent for the combined effects of the Veteran's acquired psychiatric disorders and traumatic brain injury have been met as of June 16, 2016, but no earlier. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.124a, 4.130, Diagnostic Code 8045. 2. Resolving all doubt in the Veteran's favor, the criteria for entitlement to a separate 30 percent rating for symptoms of vertigo, attributable to an ear condition due to traumatic brain injury have been met, effective November 5, 2020. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.87, 4.124a, Diagnostic Codes 8045, 6204. 3. The criteria for entitlement to a rating of total disability based on individual unemployability as of December 15, 2009, but no earlier, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1983 to April 1984, from July 1984 to July 1987, from October 1987 to February 1989, from June 2003 to November 2003, and from April 2007 to May 2008. This case comes on appeal of December 2010 and March 2013 rating decisions. The Veteran testified before the Board at a videoconference hearing in February 2020. This case was previously before the Board in June 2020. At that time, in pertinent part, the Board remanded the issues of entitlement to a compensable rating for residuals of a TBI, entitlement to a compensable rating for a left knee disability manifesting in limitation of flexion, and entitlement to a TDIU. 1. Entitlement to an increased rating for residuals of a traumatic brain injury (TBI) Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 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. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). For the purposes of a TBI, the disability is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8045. Diagnostic Code 8045 provides evaluation for three main areas of dysfunction that may result from TBI and have profound effects on functioning: (1) cognitive, which is common in varying degrees after a traumatic brain injury; (2) emotional/behavioral; and (3) physical. Each of those areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In an individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated under the table titled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. However, any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, such as migraine headache or Meniere's disease, should be evaluated separately even if that diagnosis is based on subjective symptoms, rather than under the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 4.130, based on the schedule of ratings for mental disorders, when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated under the criteria in the table titled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate DC: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. Residuals that are reported on an examination, and are not listed in the rating criteria, should be evaluated under the most appropriate Diagnostic Code. Each condition is evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation; and combined under 38 C.F.R. § 4.25 for each separately rated condition. The rating assigned based on the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table will be considered the rating for a single condition for purposes of combining with other disability ratings. 38 C.F.R. § 4.124a, Diagnostic Code 8045. As a matter of background, the Veteran filed a claim of entitlement to service connection for TBI in September 2011. The agency of original jurisdiction (AOJ) granted entitlement to service connection for TBI in March 2013, at a noncompensable rating. At the time, the AOJ also granted entitlement to tinnitus and posttraumatic cephalgia with migraine headachessymptoms of TBIunder separate evaluations, in accordance with the instructions of Diagnostic Code 8045. The Veteran submitted a timely notice of disagreement to appeal the propriety of the TBI evaluation and ultimately perfected an appeal to the Board in January 2017. Notably, in July 2017, the AOJ reevaluated the Veteran's TBI rating under an equitable relief provision due to a policy change in May 2016. As a result of that reevaluation, the Veteran underwent a VA examination, in which the examiner opined that the Veteran did not have a diagnosis of TBI. The AOJ then issued a rating decision denying entitlement to a TBI rating in excess of 0 percent. The Veteran then submitted a July 2017 notice of disagreement, appealing the denial of service connection for TBI. The Board notes, however, that the July 2017 rating decision did not sever service connection for TBI, therefore the notice of disagreement was not necessary. Indeed, as the issue of entitlement to an increased rating had already been appealed to the Board, that issue remained on appeal, irrespective of the July 2017 rating decision. Then, as was discussed above, in June 2020, the Board remanded the issue of entitlement to an increased rating for TBI, as the Veteran had testified to additional symptoms, and this warranted a new examination. Following the Board's remand, the Veteran underwent VA examinations for both TBI as well as acquired psychiatric disorders. In June 2021, a VA examiner opined that it was not possible to differentiate between the symptoms of the Veteran's acquired psychiatric disorders and TBI. As a result of this finding, in a July 2021 rating decision, the AOJ issued a combined rating for the Veteran's acquired psychiatric disorders and TBI, in accordance with the rating instructions for TBI under Diagnostic Code 8045. In doing so, the AOJ assigned a rating of 100 percent for the combined disabilities as of November 5, 2020the date the Veteran underwent the VA TBI examination. This represents a maximum disability for the combined effects of the disabilities. The Veteran's PTSD had been evaluated at a 70 percent rating prior to this date. As a result, the Board evaluates the propriety of the Veteran's TBI rating in a twofold manner. First, the Board must determine whether there is evidence to demonstrate that the combined effects of the Veteran's TBI and acquired psychiatric disorder warrant a higher rating prior to November 5, 2020. Second, as will be further discussed in the section below, the Board must determine whether there are symptoms of the Veteran's TBI that have not been appropriately evaluated under Diagnostic Code 8045, or have not been appropriately evaluated under the rating criteria of another Diagnostic Code if such is available. As the AOJ explained in its July 2021 rating decision, the Veteran's acquired psychiatric disorders with TBI are rated under the criteria of 38 C.F.R. § 4.130, which contains the General Rating Formula for Mental Disorders ("Rating Formula"). Under the Rating Formula, to be assigned a rating of 70 percent, the Veteran must demonstrate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. To be assigned a rating of 100 percent, the Veteran must demonstrate total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. The Veteran underwent a VA TBI examination in October 2011. There, he had complaints of problems with memory, attention, concentration, or executive functions, but these were mild in nature without objective evidence on testing. Judgment was normal, social interaction was routinely appropriate, motor activity was normal, visual spatial orientation was normal, and the Veteran was always oriented to person, time, place, and situation. The Veteran had subjective symptoms of mild headaches and mild anxiety, but these symptoms did not interfere with work or activities of daily living. He reported on neurobehavioral effectmanifested in irritability but that this did not interfere with workplace or social interaction. The Veteran was able to communicate by spoken and written language and was able to comprehend spoken and written language. His state of consciousness was normal. Based on the October 2011 examination, the Veteran's TBI symptoms did not manifest in total social occupational impairment. Additionally, there were no symptoms identified that had not already been contemplated by a separate evaluation under an appropriate Diagnostic Code. Therefore, there was no basis for any additional rating as of that time. Following the October 2011 examination, the Veteran's records are relatively sparse for discussions of TBI symptoms until a June 16, 2016 treatment evaluation. There, the Veteran stated that things were "getting more shaky." The Veteran reported that he was forgetting more, having increased headaches, and having blurring vision. The treating provider noted that the Veteran was initially very irritable, using a loud voice, and was quite defensive when asked about symptoms. The Veteran stated that his memory was very poor; when discussing strategies to help, such as using phone reminders, the Veteran became very irritated and yelled that he could not do that, demanding to know whether he was in the wrong place if his provider could not help. According to the provider, the Veteran's wife assisted with calming the Veteran. As the interview progressed, the Veteran interacted better and was more forthcoming with symptoms that were bothering him. At a May 2017 TBI examination, the Veteran's wife stated that the Veteran was "so forgetful." She noted that the Veteran would pour a cup of water and then ask whose water it was. She stated that the Veteran's memory seemed to have worsened in the past year. Based on this evidence, there is a clear documentation of worsening of the Veteran's symptoms compared to his initial TBI evaluation. The June 16, 2016 evaluation demonstrated the Veteran's complete inability to productively interact on a basic social level without the assistance of his wife to calm him down. This extreme irritability, incongruent to the situation, would also appear to make it impossible to participate in the workplace. Moreover, the Veteran was demonstrating signs of significant memory loss and disorientation, which are symptoms contemplated by the 100 percent rating under the Rating Formula. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's worsened symptoms of acquired psychiatric disorders and TBI, as identified in the November 2020 and June 2021 examination, were first demonstrated at the time of the June 16, 2016 treatment evaluation. Accordingly, a 100 percent rating for the Veteran's acquired psychiatric disorder with TBI is warranted as of that date. 2. Entitlement to a separate compensable rating for symptoms of a traumatic brain injury manifesting in vertigo due to an ear condition As was discussed above, at the time of the Veteran's October 2011 VA examination, there were no symptoms identified that were not contemplated either by the combined evaluation of acquired psychiatric disorders and TBI, or the related service-connected disabilities of tinnitus or posttraumatic cephalgia with migraine headaches. However, in November 2020, the Veteran underwent a series of examinations to evaluate his TBI symptoms, to include headaches and ear conditions examinations. In the headaches examination, the examiner described the Veteran's non-headaches symptoms associated with headaches as: sensitivity to light, sensitivity to sound, changes in vision, and dizziness. In contrast, in the ear conditions examination, the examiner reported that the Veteran had vertigo that was attributable to Meniere's disease, due to the residuals of TBI. Here, the Board observes that the Veteran's headaches are evaluated at a 50 percent rating throughout the period on appeal. Indeed, in a July 2017 VA examination, the examiner reported that the Veteran had very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. At that time, there was no indication that the Veteran's headaches resulted in dizziness. In an August 2021 brief, the Veteran's representative argued that the Veteran's dizziness symptoms should be evaluated separately, as an ear condition. The Board notes that VA has a duty to maximize benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). In light of this, the Board resolves all reasonable doubt in the Veteran's favor to find that the Veteran's dizziness is a manifestation of his TBI that is not accounted for by the 50 percent evaluation for headaches. In doing so, the Board notes that the competing statements in the November 2020 examinations leave it unclear as to whether the Veteran's has separate conditions of headache-induced dizziness and vertigo caused by TBI-related Meniere's disease, or whether those symptoms are one and the same. Given the ambiguity, as well as the fact that the Veteran's headaches warranted a 50 percent evaluation without symptoms of dizziness, the Board has determined that a separate compensable rating for symptoms of vertigo due to an ear condition is warranted. In this connection, the Veteran's attorney has specifically requested the assignment of a 30 percent rating under Diagnostic Code 6204 for peripheral vestibular disorders. For the following reasons, the Board agrees. Under Diagnostic Code 6204, disability manifesting in occasional dizziness warrants a 10 percent rating. Disability manifesting in dizziness and occasional staggering warrants a 30 percent rating. Importantly, a Note accompanying the rating criteria specifies that "Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code." In this case, objective findings supporting the diagnosis of vestibular disequilibrium were not made until the November 5, 2020 examination, referenced above. Indeed, on the report, it was specifically noted that the Veteran's dizziness had progressed and worsened over the years, but has now been shown to be a manifestation of a vestibular disorder, causing frequent dizziness with falling at least once a month. The Board finds this evidence probative, and consistent with the other medical and lay evidence of record suggesting symptoms of worsening over time. Accordingly, a separate 30 percent rating under Diagnostic Code 6204 is granted, effective November 5, 2020. The Board notes in passing that a higher rating under the diagnostic criteria for Meniere's disease would not be warranted, as the November 2020 examiner only identified vertigo as a symptom of his vestibular disorder, and when provided the option, did not indicate that vertigo was accompanied with hearing impairment. Such is required for ratings under Diagnostic Code 6205 (Meniere's syndrome). 3. Entitlement to a rating of total disability based on individual unemployability prior to October 12, 2011 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. See 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). For consideration under these provisions, disabilities resulting from common etiology or a single accident will be evaluated as one disability. Id. 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. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his or her service-connected disabilities, but the functional impairment caused solely by his or her service-connected disabilities. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. The economic component requires a determination as to whether a Veteran's income exceeds the poverty threshold. The noneconomic component requires a determination as to a Veteran's ability to secure and follow such employment. With regard to the latter component, attention should be given to the Veteran's history, education, skill, and training. Consideration should also be given to both the Veteran's physical and mental abilities. From a physical standpoint, possible relevant factors include the Veteran's limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Regarding the Veteran's mental ability, possible relevant factors include limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In determining whether unemployability exists, consideration should not be given to the Veteran's age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran raised the issue of entitlement to a TDIU at the time of his February 2020 Board hearing, in the context of increased initial rating claims for his service-connected left knee and acquired psychiatric disabilities. As he raised the issue of TDIU during the pendency of those August 2009 claims, the Board considers the issue of TDIU to stem from the date of those claims as well. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (noting that a TDIU claim is implicit to a claim of increased rating when raised by the record during the pendency of the increased rating claim). Notably, in remanding the issue of entitlement to a TDIU in June 2020, the Board observed that there was some inconsistency in the record regarding when the Veteran stopped working. The Veteran had indicated that he stopped working full-time in 2009 and was medically discharged from the National Guard in 2013. Treatment records indicated that on September 14, 2009, the Veteran was working as a mechanic. A June 25, 2010 mental health report noted that the Veteran was employed full-time as a mechanic with the Georgia Department of Defense and had been working there for the prior five years. A March 31, 2011 examination indicated that the Veteran's usual occupation was as a mechanic and that he was employed. An October 2011 examination indicated that the Veteran was employed at a different job. In his February 2020 Board hearing, the Veteran offered some clarification on his employment history. The Veteran reported that, as a result of his service-connected disabilities, he was on "INCAP," or incapacitation, at his full-time job with the Georgia Department of Defense. In other words, he remained employed but was unable to work. Meanwhile, the Veteran was recorded as reporting for drilling with the National Guard until 2013, however, this was based solely on his being in attendance as he awaited the processing of a medical evaluation board discharge. The Veteran explained that he reported to drilling duty, but during that time, he was undergoing doctors' visits which excused him from drilling requirements. This was due to surgery on his service-connected left knee. Following the Board's June 2020 remand, the Veteran submitted copies of W2 forms demonstrating his income from 2009 to 2012, as well as the statement of an annuity paid in 2013. Based on the income level demonstrated on these forms, the Veteran was not earning below the poverty line prior to October 12, 2011. However, the Veteran also submitted a series of monthly incapacitation pay claim forms, beginning in October 2009. These forms demonstrate that the Veteran was determined not to be fit to perform civilian duties in the context of his job with the Georgia Department of Defense. In other words, it appears that the Veteran's income during that time period was effectively disability pay from his state employer that the Veteran applied for on a month-to-month basis. These incapacitation pay claim forms continued monthly into 2012. In an August 2021 brief, the Veteran's representative argued that the Veteran's income during this time was from a protected work environment. Based on the evidence the Veteran has submitted, the Board agrees. It appears that, but for the nature of the Veteran's specific employment arrangement from October 1, 2009 forward, the Veteran would not have been earning the income that he did. Such an arrangement would not be replicable in the general labor market. Thus, the Board can consider the Veteran to have satisfied the economic component of a TDIU as of October 1, 2009. As of October 2009, the Veteran was service connected for: degenerative arthritis of the cervical spine, at a rate of 20 percent; degenerative arthritis of the lumbar spine, at a rate of 10 percent; degenerative arthritis with limitation of extension of the left knee, at a rate of 10 percent; costochondritis associated with status post fractured rib, at a rate of 10 percent; degenerative arthritis of the left knee with limitation of flexion, at a rate of 0 percent; and status post fracture rib, at a rate of 0 percent. The combined rating for these disabilities is 40 percent, meaning that the Veteran was not schedularly eligible for a TDIU at this time. However, the Board must still determine whether referral for extraschedular TDIU is warranted. As of December 15, 2009, in addition to the disabilities listed above, the Veteran was also service connected for: adjustment disorder with mixed anxious and depressed mood to include with PTSD and TBI, at a rate of 70 percent. Thus, as of December 15, 2009, he combined rating for his disabilities was 80 percent. With both a single disability of at least 70 percent and a total disability rating of 80 percent, the Veteran has been schedularly eligible for TDIU under 38 C.F.R.§ 4.16(a) as of that date. The Board notes that the Veteran's need for incapacitation pay does not, on its own, demonstrate unemployability. Rather, the need for incapacitation pay demonstrates that the Veteran was unable to perform his specific civilian job with the Georgia Department of Defense. Being unable to perform one's preferred or usual job is not the same as being unable to secure or follow any substantially gainful employment. Indeed, the Board finds that, although the Veteran's left knee disability prevented him from performing his job at that time, the Veteran's combined service-connected disabilities were not so severe that the Veteran's decades of military and mechanics training would not allow him to participate in an occupation that was less physically demanding. Therefore, referral for consideration of extraschedular TDIU prior to December 15, 2009 is not warranted. However, the combination of the Veteran's physical, psychiatric, and cognitive symptoms at least as likely as not precluded his ability to secure and follow substantially gainful employment as of December 15, 2009. As was discussed somewhat above, the Veteran's psychiatric symptoms have included panic attacks, detachment, insomnia, extreme irritability, and anger issues dating at least to an August 2008 post-deployment assessment. The Veteran also experienced memory problems, hypervigilance, and quick startle response. In concert with the Veteran's documented physical limitations, this would most likely render the Veteran unable to perform either manual labor, or an occupation that required the ability to regularly interact with coworkers or clients, such as a customer service, training, or office position. Accordingly, resolving all reasonable doubt in the Veteran's favor, entitlement to a TDIU is warranted as of December 15, 2009. REASONS FOR REMAND Entitlement to an increased rating for a left knee disability is remanded. There are inconsistencies regarding the severity and symptoms of the Veteran's left knee condition that must be resolved before the Board can properly evaluate the disability. Notably, the Veteran has undergone multiple surgeries on his left knee, to include the repair of a patellar tendon rupture and knee arthroscopy. The Veteran underwent a VA knee examination in June 2014. There, the examiner found that the Veteran had a history of left knee meniscus conditions, to include frequent episodes of joint locking, joint pain, and joint effusion. The examiner also reported that the Veteran had undergone a total knee joint replacement of the left knee and was experiencing intermediate degrees of residual weakness, pain, or limitation of motion. The examiner also reported chronic residuals consisting of severe painful motion or weakness. At that time, the Veteran appeared to describe movement or displacement of the patella. At his Board hearing, the Veteran appeared to deny that he had undergone a total knee replacement, however, the hearing transcript is somewhat unclear. In response to the question, the Veteran did not answer yes or no; instead, he responded that he had undergone surgery for reconstruction and tendon repair. The Veteran then underwent a new VA examination in November 2020. There, the examiner reported that there was no history of a meniscus condition and that the Veteran had not undergone total knee replacement. Given these inconsistencies between examinations, the Board cannot properly evaluate the disability. Thus, on remand, a new examination is necessary that both evaluates the Veteran's current condition as well as reconcile any contradictory findings in the record. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (A) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion; (B) The examiner must also estimate any functional loss in terms of additional degrees of limited motion of the lumbar spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide this estimate without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In providing this evaluation, the examiner should note the conflicting evidence in the June 2014 and November 2020 VA knee examinations regarding the nature of the Veteran's left knee surgery and history of meniscus conditions. The examiner should reconcile the current findings with any previous conflicting findings. 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.