Citation Nr: 21065429 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-18 580A DATE: October 26, 2021 ORDER Entitlement to service connection for bilateral pes planus is granted. Entitlement to an initial 20 percent rating for degenerative arthritis of the left knee is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Bilateral pes planus was noted at service entry. 2. Bilateral pes planus increased in severity during service, and the evidence does not show, clearly and unmistakably, that the pre-existing bilateral hearing loss disability was not aggravated by service. 3. The Veteran's left knee has been manifested in frequent episodes of locking, pain, and effusion; flexion was better than 45 degrees, extension was full. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for entitlement to an initial 20 percent rating for degenerative arthritis of the left knee have been met. U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes 5258, 5260, 5261 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1986 to August 1989. This matter initially came before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision issued a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified that before a Veterans Law Judge who is no longer at the Board. In August 2021, the Veteran was provided an opportunity have an additional hearing before a Veterans Law Judge who would issue a decision in this appeal; however, he did not respond to the letter. The Board will accordingly proceed with a decision in this matter. In September 2018 and January 2021, the Board remanded the matters on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since returned to the Board for the purpose of appellate disposition. The Board notes that the Veteran indicated that he did not want to appear for examinations to be conducted pursuant to the Board's 2021 remand instructions. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c), as appropriate. Subsection (b) applies to original or reopened claims or claims for increase, while subsection (c) applies to running awards, when the issue is continuing entitlement. In an original claim for disability compensation such as the Veteran's claims, if a Veteran fails to appear for examination, the claim must be rated on the evidence of record. 38 C.F.R. § 3.655. 1. Entitlement to service connection for bilateral pes planus Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additional laws and regulations apply, when there is evidence that a disability preexisted service. Every Veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran's service enlistment examination dated in August 1986 reflects assessment of mild pes planus. Because bilateral pes planus was noted at entry, the presumption of soundness is not applicable. Therefore, the remaining issue is whether the preexisting bilateral pes planus was aggravated by service. A pre-existing disability will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. See Beverly v. Brown, 9 Vet. App. 402, 405 (1996) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)) (noting that, although the record showed that the Veteran experienced some periodic pain and stiffness in the knee during service, there was no evidence to show that he experienced "persistent worsening of his knee condition in service"). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Veteran's service treatment records include a September 1988 examination noting assessment of pes planus. The Veteran also endorsed foot pain on report of medical history at that time. Following discharge from service, VA treatment records as early as 2012 reflect complaint of foot pain and assessment of flat feet. During the Veteran's 2017 Board hearing, the Veteran testified that his flat foot disability worsened in service. He noted problem with his feet early on in service as a result of physical training and running. He did not seek treatment during service as he did not want to complain. The Veteran reported that he had some arch of the feet prior to service, but these arches had flattened completely in service, and that this flatness had continued since service. On VA foot examination in October 2020, the examiner diagnosed flat foot and noted a date of diagnosis in 2010. The Veteran reported that his bilateral foot pain started in service due to standing, road marches, and other duties. The examiner opined that the claimed pes planus was less likely than not due to service as it existed prior to service. In this case, the Board finds that there was increase of the disability during service. Service treatment record reflect that there was complaint of foot pain and notation of flat feet at discharge. The Veteran credibly reported incidences of foot pain in service as well as flattening arches in service. The Board notes that only mild pes planus was noted at entry. A pre-existing disability will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In this case, the Board finds the other evidence of record does not clearly and unmistakably establish that the increase in disability is due to the natural progress of the disease. The 2020 did not provide any opinion as to whether the disability worsened in service. Lastly, with respect to nexus to service, the Veteran's current bilateral pes planus is the same disability as noted in service. The Veteran has reported persistent and recurrent foot pain related to pes planus. Therefore, service connection for bilateral pes planus is warranted. 2. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). To the extent that staged ratings have been assigned for some of the Veteran's service-connected disabilities, the Board will consider the propriety of the rating for each stage. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran's service-connected left knee degenerative arthritis is rated as 10 percent disabling pursuant to Diagnostic Code 5261. The normal flexion of the knee is 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion to 60 degrees warrants a 0 percent rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The normal range of extension of the knee is 0 degrees. Limitation of extension to 5 degrees warrants a 0 percent rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Symptoms associated with the removal of semilunar cartilage warrant a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Impairment in the form of recurrent subluxation or lateral instability warrants a 10 percent rating if slight, 20 percent if moderate, and 30 percent if severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the majority of these diagnostic codes were not changed. The only relevant change is to Diagnostic Code 5257, which provides that a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability, or for sprain/ligament tear causing persistent instability without prescription for an assistive device, while a 20 percent rating is warranted for: a) sprain, incomplete ligament tear, or repaired complete ligament tear causing permanent instability, and a medical provider prescribed brace or assistive device for ambulation, or; b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribed assistive device or bracing for ambulation, or for a diagnosed condition involving the patellofemoral complex with recurrent instability requiring prescription for a brace and a cane or walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (effective February 7, 2021). Private treatment records dated in 2011 reflect left knee pain and tenderness. VA treatment records document report of left knee pain associated with a meniscal tear. A December 2011 MRI of the left knee revealed a lateral meniscus tear involving the middle and posterior third as above, with possible extension to posterior tibial attachment. A February 2012 orthopedic consult revealed assessment of bilaterally knee pain, worse on the left, with locking of the left knee. Range of motion was from 10 to 90 degrees. There was moderate swelling, pain medially, and no instability. X-ray showed moderate degenerative joint disease, worse in the lateral compartment. MRI revealed tear of the medial meniscus, loose bodies, and degenerative joint disease laterally. On VA examination in July 2013, the Veteran reported that he tore his left lateral medial meniscus in service, and arthroscopic surgery was performed. He reported persistent pain since that time. He also described an incident where he hyper-flexed the knee in February 2013. He denied flare-ups of the knee. Range of motion testing revealed left knee flexion to 95 degrees, with painful motion beginning at 70 degrees. Left knee extension was full, and there was no objective evidence of painful motion. Functional loss on repetition included less movement than normal, excess fatigability, pain on movement, and swelling. There was pain or tenderness to palpation for the joint line or soft tissue of the knee. The examiner noted that the joint function would be impacted by flare-ups or after repeated use over time, but additional loss of range of motion could not be estimated. He would have increased pain that would limit this motion, and episodes of locking could be increased with overuse. Joint stability testing revealed normal findings on posterior and medial-lateral instability tests. There was 1+ on left knee instability testing. There was no history of recurrent patellar subluxation or dislocation. The examiner indicated that the Veteran had a meniscal tear productive of frequent episodes of locking and pain. He had undergone partial meniscectomy in December 1987. The Veteran did not use an assistive device as a normal mode of locomotion. The examiner diagnosed meniscal tear of the left knee, finding that the Veteran would be limited in employment positions that required frequent changes of position from sitting to standing and back, stair climbing, and walking greater than 5 minutes, standing for greater than 10 minutes. On his September 2013 notice of disagreement, the Veteran reported that he could not stand for more than 30 minutes at a time, and that he was unable to work regularly because of pain. His foot and knee pain were, at times, unbearable. A March 2014 private x-ray of the left knee revealed possible remote osteochondral injury involving the lateral tibial plateau with some possible small associated loose joint bodies. On VA examination in August 2016, the Veteran stated that he had constant throbbing, aching pain along the right and left joint line. He also complained of intermittent locking of his knee with prolonged sitting. He was supposed to have an additional surgery for this torn left meniscus in 2013, but the surgery was placed on hold due to other medical conditions. He used a cane for support, though it was not prescribed and was purchase on his own. He did not wear a knee brace. He was unable to jog, run, or participate in sporting activities. He was not currently working and last worked in 2015; he previously worked as a cook. He did light housekeeping and laundry. He denied flare-ups of the knee or lower leg. Range of motion testing revealed flexion from 0 to 125 degrees and extension from 140 to 0 degrees. Pain was noted on examination but did not result in functional loss. There was no evidence of pain with weight bearing. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least 3 repetitions and there was no additional functional loss of range of motion after 3 repetitions. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time, and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated that it was not possible without resorting to speculation to estimate loss of range of motion or function, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Again, the Veteran denied flare-up. There was no ankylosis, history of recurrent subluxation, history of lateral instability, or history of recurrent effusion. Joint stability testing was normal. The Veteran had a meniscal tear with frequent episodes of joint locking and pain. The examiner diagnosed left knee meniscal tear and knee joint osteoarthritis. The examiner indicated that the Veteran would not be able to perform activities that required running, jumping, repetitive use, stair climbing, sitting, or standing for greater than 15 minutes without changing positions or taking a break due to the left knee disability. During the Veteran's February 2017 Board hearing, the Veteran reported constant knee pain and difficulties with walking. He used a cane crutch and took three different types of pain medication. In the morning he could barely walk. His pain levels reached a 7 or 8 at times. The knee locked up if he sat down or used the bathroom. His knee had also given way on occasion before. Extension and flexion of the knee was painful. An October 2017 VA treatment report indicates that the Veteran was ordered a knee brace for his complaint of left knee pain. An October 2018 examination, the Veteran reported knee pain that worsened if he stood over 40 minutes or walked over one-half of a city block. Range of motion testing revealed flexion from 0 to 135 degrees and extension from 135 to 0 degrees. There was pain on flexion and extension, pain with weight-bearing, and tenderness on palpation. There was evidence of crepitus. There was no additional loss of range of motion on repetition. The examiner indicated that the Veteran was not being examined after repetitive use over time or during flare-up, but that the examination was medical consistent with the Veteran's statements describing functional loss with repetitive use over time. The Veteran was unable to state whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-up without resort to speculation because there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions. There was no pain on passive range of motion or evidence of pain when the joint was used in non-weight bearing. There was no ankylosis present. The examiner noted moderate lateral instability but no subluxation. There was no history of recurrent subluxation. Anterior stability and posterior stability tests were normal, while medial and lateral instability tests yielded abnormal results (2+). The examiner commented that the Veteran's left knee was productive of meniscal tear with frequent episodes of joint locking and pain. The examiner noted that the Veteran had meniscal surgery in 1987, but he did have a new problem in 2011 for which he had not had surgical treatment. The Veteran regularly used a brace and occasionally used a cane. X-ray showed mild degenerative change and synovial chondromatosis/loose bodies with slight progression since the prior study. The examiner diagnosed knee meniscal tear, joint osteoarthritis, instability and chondromatosis. The examiner commented that the Veteran was staying in a VA domiciliary and working in the kitchen, and was not using a cane. With respect to functional impact, the examiner indicated that the Veteran should not accept a job that would require him to stand too long, walk too far, or kneel. On VA examination in October 2020, the Veteran reported a history of arthroscopy and partial meniscotomy in service in 1987. The condition had progressively worsened. He noted that his knee locked frequently, and the arthritis had worsened. He rated his pain as a constant level of 8 or 9 on a scale to 10. The knee was very stiff after sitting for a while, and then it gradually warmed up. Once or twice a day the knee would lock up and the Veteran had to move it manually with both hands to unlock it. The knee swelled if he was on his feet for a prolonged period. He experienced flare-ups with cold and rainy weather. For treatment, he took Motrin as needed. On range of motion testing, right knee flexion and extension was from 0 to 120 degrees, and 120 degrees to 0 degrees, with pain on range of motion. Range of motion contributed to functional loss in that the Veteran was unable to kneel. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing or objective evidence of crepitus. There was no additional loss of range of motion after three repetitions. The examiner indicated that the Veteran was not been examination during flare-up or after repeated use over time, but that the examination was medically consistent with the Veteran's statements describing functional loss during flare-up. However, there was no additional estimate loss of range of motion on flare-up or after repeated use over time. There was no objective of pain on weightbearing, and passive range of motion was the same as active range of motion. Muscle strength testing was full and there was no muscle atrophy present. No ankylosis was present. Joint stability testing revealed no abnormalities findings. The examiner noted that the Veteran's meniscal condition was productive of frequent episodes of joint locking. There was a scar of the medial left knee measuring .3 by .2 centimeters. The Veteran did not use an assistive device. The examiner diagnosed degenerative arthritis of the left knee. The examiner commented that functional impact of the disability was that the Veteran was unable to do any impact activities or stand for more than 15-20 minutes. In a May 2021 statement, the Veteran reported that his left knee locked up on him daily, popped, and then he experienced intense pain. With respect to the currently assigned 10 percent rating for left knee degenerative arthritis under Diagnostic Code 5261, the 10 evaluation contemplates pain on motion. It is also consistent with extension limited to 10 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of extension limited to 15 degrees. 38 C.F.R. § 4.7; DeLuca. A separate rating may also be assigned for limitation of flexion. In this case, the medical evidence establishes flexion to well over 100 degrees and generally full extension of the knee, though one report notes, at worst, flexion to 90 degrees extension to 10 degrees. As flexion is not limited to 45 degrees or less, and extension is not limited to 15 degrees or more, an evaluation in excess of 10 percent is not warranted (and a separate evaluation for limited flexion is not warranted). In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, while the Veteran has reported increased limitation on flare-up, neither the medical nor lay evidence suggests that he is limited to 15 degrees extension or compensable limitation of flexion. Given the Veteran's history of meniscal tear and partial meniscotomy, the Board has also considered whether a higher rating is warranted under Diagnostic Code 5258 or 5259, for dislocation or removal of the semilunar cartilage (meniscus). Significantly, a rating under Diagnostic Code 5259, cartilage, semilunar, removal (see also Diagnostic Code 5258, dislocated semilunar cartilage) already contemplates limitation of motion, such that separate ratings for limitation of motion (e.g., Diagnostic Codes 5003, 5260, or 5261) would violate the regulatory prohibition against pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 9-98 (August 14, 1998). In this case, although the Veteran's meniscus was not removed, he has a history of tear and partial meniscotomy in service. VA examinations and various lay statements of record reflect frequent episodes locking, pain, and effusion. These symptoms are consistent with a 20 percent rating under Diagnostic Code 5258, which is the maximum rating under this code. The Board notes that there is some question as to additional injury of the meniscus after service, as noted in 2011 MRI findings; however, there is insufficient evidence to separate any post-service disability from disability resulting from the in-service tear and partial meniscectomy. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that a 20 percent rating, but no higher, is warranted. The assignment of a 20 percent rating under Diagnostic Code 5258 is thus the greater benefit. As noted above, the assignment of a separate rating for painful and limited flexion or extension under Diagnostic Code 5260 or 5261 would amount to pyramiding and is strictly prohibited. In this case, the Veteran is also separately rated for instability of the left knee under 5257, as well as scarring of the left knee. These matters are not currently before the Board. Furthermore, there is no credible evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum. The Board has also considered the Veteran's statements and hearing testimony, regarding the severity of his back symptoms. Certainly, as a lay person, he is competent to attest to physical symptoms that he experiences, such as persistent knee pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, these statements are credible, however, neither the medical evidence nor the lay evidence of record suggests that an evaluation in excess of 20 percent is warranted at this time. The Veteran's statements have been non-specific and fail to establish a greater degree of functional impairment. Finally, the Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1). Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). However, in this case, the Board finds that the record does not show that the Veteran's left knee disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required. Thun, 22 Vet. App. 111; VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those marked interference with employment and frequent periods of hospitalization. 38 C.F.R. § 3.3213(b)(1). In this case, the Veteran's knee symptoms are fully contemplated by the applicable rating criteria. The symptomatology reported by the Veteran and shown on examination, to include pain, locking, and difficulties with functions such as walking and standing, is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria inapplicable. All potentially relevant rating codes have been considered and evaluated. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. The rating assigned considers the impact on the Veteran's employment. In any event, the evidence does not reflect that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Board has considered that the Veteran's contention that he is limited in his work hours due to his knee pain; however, pain and interference with abilities to stand and walk are considered as part of the rating criteria used to rate the disability. Therefore, referral for consideration of an extraschedular rating for the Veteran's left knee disability is not warranted. 38 C.F.R. § 3.321 (b)(1). Accordingly, the Board finds that a 20 percent rating, but no higher, for the Veteran's left knee disability is warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C.§ 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. Although the Board regrets the additional delay, the Board believes that additional development on the remaining claim for TDIU is warranted. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran previously did not meet the schedular criteria for a TDIU. In this decision, the Board has granted service connection for pes planus, and any rating assigned for the disabilities may impact the claim for TDIU. Therefore, the Board finds that the Veteran's claim for TDIU must be remanded for the RO to effectuate the decision and establish a rating for pes planus and then readjudicate the claim for TDIU. In addition, further clarification is needed on the Veteran's employment history. On a February 2021 VA Form 21-8940, Application for TDIU, the Veteran reported that he last worked full-time in February 2021. However, on that same form he noted that he worked in food service as a VA medical center as of March 2019, that he was currently employed, and that his present monthly earned income was $1,700. He then also noted that he missed 6 months of work in the last year due to his disabilities. Moreover, the Veteran's work history throughout the appeal period is unclear. As noted above, a VA examination report indicates that the Veteran stopped working in 2015, and the Veteran has not noted any other employment other than as a food service worker starting in 2019. A TDIU may still be awarded where the employment was marginal. 38 C.F.R. § 4.16(a). Marginal employment is generally deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist when earned annual income exceeds the poverty threshold, on a facts-found basis including, but not limited to, employment in a protected environment such as a family business or sheltered workshop. In this case, there is insufficient evidence to determine whether the Veteran was marginally employed at any point relevant to the appeal period, given that he has reported 6 months of time lost from work during the last year. As such, the AOJ should also request that the Veteran submit evidence (e.g., pay stubs, W2 Forms, tax returns, letters from employers, etc.) documenting marginal employment, if any, due to his service-connected disabilities. The AOJ should request information from the Veteran's employers, to include earnings and the reason for leaving employment. The matters are REMANDED for the following action: 1. Request that the Veteran complete an updated VA Form 21-8940 and submit evidence (e.g., pay stubs, W2 Forms, tax returns, letters from employers, etc.) documenting marginal employment, if any, due to his service-connected disabilities, as well as his employment history, if any, from 2011 to 2019. Then request information from the Veteran's previous employers, to include earnings and the reason for leaving employment. This should include any evidence showing that the Veteran's employment is in a protected environment such as a family business or sheltered workshop. All actions to obtain the requested information should be documented fully in the claims file. (Continued on the next page) 2. After completing the above development and any additional development deemed warranted, and effectuating the Board's decision regarding the Veteran's pes planus and left knee disabilities, adjudicate the claim for TDIU. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.