Citation Nr: 21065676 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-23 370 DATE: October 27, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left knee disorder is denied. Entitlement to a rating in excess of 10 percent for a right knee disorder is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) from August 19, 2008, to December 8, 2014, is denied. Entitlement to a TDIU from December 8, 2014, to May 1, 2018, is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's left and right knee disorders are not manifested by flexion limited to at least 30 degrees, extension limited to at least 10 degrees, or ankylosis even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor are they manifested by at least slight recurrent subluxation or lateral instability, a sprain, incomplete ligament tear or complete ligament tear causing persistent instability, patellar instability, dislocated semilunar cartilage, impairment of the tibia and fibula, medial tibial stress syndrome, or tibia and fibula malunion at any time during the pendency of the appeal. 2. From August 19, 2008, to December 8, 2014, the preponderance of the evidence showed that the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) and the preponderance of the evidence showed that he did not meet the criteria for referral of his claim to the Under Secretary for Benefits or the Director, Compensation Services for extraschedular consideration under 38 C.F.R. § 4.16(b). 3. From December 8, 2014, to May 1, 2018, the Veteran's service-connected disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for ratings in excess of 10 percent for left and right knee disorders have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5259, 5260, 5261, 5261, 5262, and 5263; 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). 2. From August 19, 2008, to December 8, 2014, the criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 3. From December 8, 2014, to May 1, 2018, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from May 1972 to September 1972. The Veteran also had six years of service with a Reserve Component. In June 2019, the Board of Veterans' Appeal (Board) remanded the appeal. In a March 2020 decision issued by a Veterans' Law Judge not the undersigned, the Board denied the appeal. The Veteran appealed the March 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacating and remanded the Board decision. In May 2021, the Board remanded the appeal for additional development to address the concerns. The Concerns Raised by the JMR and Post-Remand Development Initially, the Board finds that the post-Remand development substantially complied with the JMR and Remands including addressing the Court's concerns in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board has reached this conclusion because it finds that the August 2021 VA examination provide all needed information to rate the left and right knee disorders under all applicable rating criteria and included range of motion studies that considered the Veteran's complaints of pain, provided the knees ranges of motion during flare-ups as well as with and without weight bearing and resistance in passive and active range of motion as well as considered instability and subluxation. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-Remand development substantially complied with the Remands because while the appeal was at the regional office (RO) it obtained and associated with the record all identified and available VA and private treatment records. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required). Lastly, and as directed in the JMR, the Board finds that the below TDIU discussion addresses the Court's holding in Withers v. Wilkie, 30 Vet. App. 139 (2018) in its decision as it relates to "'sedentary work' is absent from § 4.16 and, thus, is not necessarily part of a proper TDIU analysis" as well as discusses the appellant's level of education. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination or to obtain additional records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Rating Claims The Veteran contends that his left and right knee disorders are more severely disabling than represented by the ratings assigned at all times during the appeal. In this regard, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran's left knee disorder is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260 and right knee disorder is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. i. The Recent Amendments to the Musculoskeletal Rating Criteria Initially, the Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board cannot apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the regulation does not provide for retroactive application. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Moreover, the Board finds that none of the amendments change how this Veteran's left and right knee disorders are rated. See Owens, supra. The Board has reached this conclusion because the specific rating criteria were not amended or because the Veteran's disabilities are not ratable under the amended criteria. Therefore, the Board finds that a Remand to provide the Veteran with notice of these new rating criteria and have the claims adjudicating applying them is not required. See Sabonis, supra. ii. The Old and New Rating Criteria Under 38 C.F.R. § 4.71a, Diagnostic Code 5003 degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Old Diagnostic Code 5010 provides, in substance, that traumatic arthritis is rated under Diagnostic Code 5003. 38 C.F.R. § 4.71a. New Diagnostic Code 5010 provides, in substance, that post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Under Diagnostic Code 5003 degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating. Under old 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling. And, severe recurrent subluxation or lateral instability, warrants a 30 percent rating. The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Effective February 7, 2021, VA amended Diagnostic Code 5257. For recurrent subluxation or lateral instability, a 10 percent rating is assigned for a sprain, incomplete ligament tear or complete ligament tear causing persistent instability without prescribed assistive device or bracing for ambulation. A 20 percent rating is warranted when a) a sprain, incomplete ligament tear, or repaired complete ligament tear causes persistent instability; or b) an unrepaired or failed repair of a complete ligament tear causes peristent instability. A prescribed assistive device or bracing for ambulation is required. A 30 percent rating requires unrepaired or failed repair of complete ligament tear causing persistent instability and a prescription for both an assistive device and bracing for ambulation. For patellar instability also rated under Diagnostic Code 5257, a 10 percent rating is assigned for a diagnosed condition that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted when there is a diagnosed condition with a prescription for either a brace, cane, or walker. A 30 percent rating requires a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription for brace and either a cane or a walker. Id. NOTE 1 following the criteria provides, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. NOTE 2 following the criteria provides a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. If extension of the knee is limited to 30 degrees a 40 percent rating is in order. If extension of the knee is limited to 45 degrees a 50 percent rating is in order. Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under old 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating. Effective February 7, 2021, VA amended Diagnostic Code 5262. Medial tibial stress syndrome (MTSS), or shin splints is rated as 0 percent disabling with treatment less than 12 consecutive months, one or both lower extremities; 10 percent disabling when requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; 20 percent disabling when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; and 30 percent disabling when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Tibia and fibula are rated as 40 disabling with nonunion with loose motion, requiring brace. Tibia and fibula with malunion are evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. As noted above, prior to February 7, 2021, the Board will apply the prior rating criteria. See Kuzma, supra. From February 7, 2021, onward, the Board applies the criteria that is more favorable to the Veteran. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Lastly, in Chavis v. McDonough, No. 18-2928 (2021) the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), that Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. In this regard, VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disorder includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97 (July 1, 1997). iii. Correia, and Sharp Compliance Next, in adjudicating below whether the Veteran meets the criteria for higher evaluations for his left knee disorders, the Board has not overlooked the Court's holdings in Correia, supra, and Sharp, supra. Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases because at the August 2021 VA examination the examiner when providing the range of motion of the knees considered his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination is not required. See Sabonis, supra. iv. The Merits of the Knee Rating Claims As to ratings in excess of 10 percent for the Veteran's left and right knee disorders under Diagnostic Code 5260, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for at least 20 percent ratings because the most probative evidence of record shows that flexion of the left and right knee were not limited to at least 30 degrees at all times during the appeal. See Owens, supra. The Board has reached this conclusion because, while the January 2017 DBQ examiner reported that flexion of the left and right knee were 5 degrees during flare-ups, the Board does not find this opinion credible because it is not supported by the findings at the examination but instead were based on the Veteran's lay claim as well as because this degree of lost flexion is not otherwise seen at his VA examinations or in any of his treatment records. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant); Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). On the other hand, the Board finds that range of motion studies provided by the Veteran's VA examiners, in which it was opined that right knee flexion was 100 degrees at the September 2010 VA examination, left knee and right knee flexion was 120 degrees at the December 2015 VA examination, left knee and right knee flexion was 70 degrees at the February 2018 VA examination, left knee and right knee flexion was 120 degrees at the November 2019 VA examination, and left knee and right knee flexion was 80 degrees at the August 2021 VA examination, both competent and credible as well as the most probative evidence of record because they are supported by the examinations as well as the Veteran's treatment records. See Owens, supra. Moreover, while the Veteran's treatment records document his complaints and treatment for left and right knee problems, the Board finds that above VA examiners ranges of motion are not contradicted by any other medical evidence of record because treatment records never document less flexion in the either knee. Id. Furthermore, the Board finds that the Veteran is not qualified to provide range of motion findings in either knee because these are medical findings. See Davidson, supra. It is essential for the Veteran to understand that with each remand the Board has done, and with each examination undertaken, the Board has been given more evidence against these claims each time. Therefore, the Board finds that the criteria for increased ratings for the left and right knee disorder due to lost flexion under Diagnostic Code 5260 are not met at any time during the pendency of the appeal. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra. As to higher ratings and/or a separate compensable ratings for the left and right knee disorders under Diagnostic Code 5261 and VAOPGCPREC 9-2004 due to lost extension, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for at least 10 percent ratings at all times during the pendency of the appeal. See Owens, supra. The Board has reached this conclusion because extension of the left knee and right knee are not limited to the 10 degrees required for compensable ratings at all times during the appeal because right knee extension was 0 degrees at the September 2010 VA examination and left and right knee extension was 0 degrees at the December 2015, February 2018, November 2019, and August 2021 VA examinations as well as the January 2017 DBQ examination. See Colvin, supra. Moreover, while the Veteran's treatment records document his complaints and treatment for left and right knee problems, the Board finds that above examiners ranges of motion are not contradicted by any other medical evidence of record because treatment records never document less extension in the either knee. Id. Furthermore, the Board finds that the Veteran is not qualified to provide range of motion findings in either knee because these are medical findings. See Davidson, supra. Therefore, the Board finds that the criteria for increased ratings as well as separate compensable ratings for the left and right knee disorders due to lost extension under Diagnostic Code 5261 are not met at any time during the pendency of the appeal. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra. As to higher ratings and/or separate compensable ratings for the left and right knee disorders under old and new Diagnostic Code 5257 and VAOPGCPREC 23-97 due to instability, the Board notes that that in the January 2017 Brief from the Veteran's representative which accompanied the January 2017 DBQ it was asserted that the appellant was entitled 20 percent ratings in each knee because of instability. However, while some of the examiners reported that the Veteran used a cane and/or brace (see, e.g., VA examinations dated in December 2015, February 2018, and November 2019; DBQ examination dated in January 2017), the January 2017 DBQ examiner did report that there was instability and/or subluxation in either knee nor did the examiner find an incomplete ligament tear or complete ligament tear causing persistent instability or patellar instability despite using a cane and brace. See Colvin, supra. Likewise, the Veteran's September 2010, December 2015, February 2018, November 2019, and August 2021 VA examinations are uniform in showing that neither knee had a problem with instability, subluxation, an incomplete ligament tear or complete ligament tear causing persistent instability, or patellar instability despite using a cane and brace. Id. Moreover, the Board notes that while treatment records document the Veteran's complaints and treatment for left and right knee problems, nothing in these records contradicts the above examiners findings. Id. Furthermore, the Board finds that the Veteran is not qualified to provide stability finding in either knee because this is a medical finding. See Davidson, supra. Therefore, the Board finds that the most probative evidence of record is the above examiners findings and the treatment records which are negative for any of the criteria required for a least a 10 percent rating for knee instability under old and new Diagnostic Code 5257 at all times during the pendency of the appeal. See Owens, supra. Accordingly, the Board finds that the criteria for increased ratings as well as separate compensable ratings for knee instability under old and new Diagnostic Code 5261 are not met at any time during the pendency of the appeal. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra. As to higher evaluations for the Veteran's left and right knee disorders under Diagnostic Code 5256 due ankylosis, the Board finds that even when considering the Veteran's reports of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, and Chavis, as well as when considering her competent reports of observable adverse symptomatology (see Davidson, supra), neither knee meets the criteria for a higher rating by rating it as ankylosis. See Owens, supra. The Board has reached this conclusion because the record is uniform in documenting at least some left and right knee motion and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Also see Owens, supra. In fact, the VA examiners in December 2015, February 2018, November 2019, and August 2021 opined that the left and right knee were not ankylosed and these medical opinions are not contradicted by any other medical evidence of record even though his treatment records document numerous instances where he sought treatment for pain caused by his service connected knee disabilities. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent to provide the missing diagnosis of ankylosis because this is a medical finding. See Davidson, supra. Additionally, the Board finds the examiners opinions as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Consequently, the Board finds that higher evaluations are not warranted for the Veteran's service-connected left and right knee disorders under Diagnostic Code 5256 due to ankylosis at any time during the pendency of the appeal. See 38 C.F.R. § 4.71a; Fenderson, supra; Hart, supra. As to higher evaluations for the Veteran's left and right knee disorders under Diagnostic Code 5258 for symptomatic removal of semilunar cartilage, Diagnostic Code 5259 for removal of the semilunar cartilage when symptomatic, under Diagnostic Code 5262 for impairment of the tibia and fibula, and/or under Diagnostic Code 5263 for Genu recurvatum, the Board finds that the left and right knee disorders do not include any of the above adverse symptomatology and/or the 10 percent ratings already assigned meets the maximum rating possible under these Diagnostic Codes. See 38 C.F.R. § 4.71a; Also see VA examinations dated in September 2010, December 2015, February 2018, November 2019, and August 2021; DBQ examination dated in January 2017; Colvin, supra. Therefore, the Board finds that increased ratings under these criteria are not warranted at any time during the pendency of the appeal. See 38 C.F.R. § 4.71a; Butt's, supra; Hart, supra; Fenderson, supra. In reaching all of the above conclusions, the Board has also not overlooked the claims from the Veteran regarding his adverse symptomatology. See Davidson, supra. However, the Board finds the examiners opinions as to the Veteran's adverse symptomatology more probative than the lay claims from the appellant to the contrary even though his symptomatology is observable by a lay person because the examiners have medical training. See Black, supra. The TDIU Claim The Veteran claims, in substance, that he is entitled to a TDIU at all times since he filed his knee rating claim on August 19, 2008, even though a TDIU has only been assigned effective May 1, 2018. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran's service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In this regard, 38 C.F.R. § 4.16(a) provides that when earned annual income exceeds the poverty threshold, marginal employment may also be held to exist, on a fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop). However, to date, neither the Court nor the Secretary has provided a definition as to what constitutes a "protected work environment." Nonetheless, the Board observes that the examples of "protected environment" used in the text of 38 C.F.R. § 4.16(a) are the family business and sheltered workshop. In the case of a family business, it is common for an employer to hire a relative to fill a position, not because the relative is necessarily the most capable or efficient prospective employee, but for reasons of affection or obligation. Furthermore, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. Id. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). It is imperative for the Veteran to understand that neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As to a TDIU under 38 C.F.R. § 4.16(b) the Board notes that in Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. Therefore, the next question for the Board to consider is when, if ever, the Veteran met the criteria for a referral under 38 C.F.R. § 4.16(b) to the Under Secretary for Benefits or the Director, Compensation Services for extraschedular consideration. In this regard, the Board notes that the appropriate standard in considering whether a remand for referral of consideration of extraschedular TDIU under 38 C.F.R. § 4.16(b) is found in Ray v. Wilkie, 31 Vet. App. 58, 65-66 (2019). In this regard, the Court in Ray held that "the decision... to refer [a case for extraschedular consideration under § 4.16(b)] and to award a [TDIU] rating are fundamentally different." 31 Vet. App. 58, 65 (2019). The Court held in Ray that "the initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray, 31 Vet. App. at 66; id. at 66 n. 38 (explaining that this standard (for initial extraschedular TDIU referral decision) was similar to and merely elaborates on the well-grounded claim standard used in Stanton v. Brown, 5 Vet. App. 563,570 (1993)). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In this regard, it is imperative for the Veteran to understand that neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. As to the facts surrounding the appeal, in his VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), dated in May 2018, the Veteran reported that he became too disabled to work and had not worked full time because of his service-connected disabilities since February 2001. He also reported that his prior work experience was as a "stander" and crane operator from 1996 to 2001. At the November 2014 VA examination, the Veteran also reported that he worked approximately 27 years as a steel worker before he stopped working approximately 10 years ago because of physical disabilities. His highest level of education was 4-years of High School. Lastly, the record shows that from August 19, 2008, to May 1, 2018, the Veteran was service-connected for the following disabilities: posttraumatic stress disorder (PTSD) rated as 30 percent disabling from August 19, 2008, and 50 percent disabling from November 6, 2014; right knee disorder rated as 10 percent disabling from August 19, 2008; hemorrhoids rated as noncompensable from August 19, 2008, and 20 percent disabling from December 8, 2014; tinnitus rated as 10 percent disabling from November 16, 2011; right ear hearing loss rated as noncompensable from November 16, 2011; left knee disorder rated as 10 percent disabling from January 7, 2016; and sleep apnea rated as 50 percent disabling from May 18, 2017. In summary, the Board finds that the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) from August 19, 2008, to December 8, 2014, because he did not have one disability rated as 40 percent or higher and had a combined rating of 70 percent or higher. On the other hand, the Board finds that the Veteran met the schedular requirements of 38 C.F.R. § 4.16(a) from December 8, 2014, to May 1, 2018, because starting December 8, 2014, he had one disability rated as 40 percent or higher and he had a combined rating of 70 percent or higher. Therefore, the Board's analysis will address the following time periods-from August 19, 2008, to December 8, 2014, and from December 8, 2014, to May 1, 2018. I. From August 19, 2008, to December 8, 2014 As to the August 19, 2008, to December 8, 2014, time period, given the above, the Board finds that a TDIU is not warranted under 38 C.F.R. § 4.16(a). Therefore, the next question for the Board to consider is, when, if ever from August 19, 2008, to December 8, 2014, his service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation such that the criteria for referral of his claim to the Under Secretary for Benefits or the Director, Compensation Services for extraschedular consideration have been met because there's sufficient evidence to substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities. See 38 C.F.R. § 4.16(b); Ray, supra. Initially, the Board notes that the Veteran claims that he was not working since February 2001. However, the Board finds that even if it conceded that the Veteran had not worked at any time from August 19, 2008, to December 8, 2014, this fact alone is not enough to meet the criteria for referral of his claim because the Board finds that the preponderance of the evidence shows that there is not a reasonable possibility that he is unemployable by reason of his service-connected disabilities. See 38 C.F.R. § 4.16(b); Owens, supra; Ray, supra. The Board has reached this conclusion because extraschedular consideration is only warranted when the adverse symptomatology caused by a Veteran's service-connected disabilities are not adequately compensated for by the rating criteria. 38 U.S.C. § 1155; 38 C.F.R. § 4.1(providing, in substance, that disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity). In this regard, the Board finds that the most probative evidence of record in the form of the Veteran's VA examinations show that the adverse symptomatology caused by his service-connected PTSD, right knee disorder, and hemorrhoids are both contemplated and consider by the rating criteria. See Owens, supra. The Board also finds that this evidence shows there is no reasonable possibility that he is unemployable by reason of his service-connected disabilities even when considering his over two decades of work as a steel worker/crane operator and his high school education. Id; Also see Ray, supra. Specifically, the Board finds it significant that, while at the November 2014 VA psychiatric examination it was reported that the Veteran's PTSD caused problems with a depressed mood, anxiety, chronic sleep impairment, mild memory loss, a flattened affect, circumstantial, circumlocutory or stereotyped speech, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting, the examiner opined that his adverse symptomatology only caused occupational and social impairment with reduced reliability and productivity. This medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Likewise, the Board finds it significant that while at the September 2010 VA knee examination the Veteran reported that he had problems with right knee pain and limitation of motion and on examination the range of motion of the right knee was 0 to 100 degrees with no instability. Very important for this case, the examiner also opined that the appellant's "entire demeanor was one of gross exaggeration." See Owens, supra. This is an exceptionally important point in this particular case. The Board has undergone a highly detailed review of the medical evidence of record over many years. In this regard, the Veteran must understand that there is in this case significant evidence against the current evaluations, let alone higher elevations and there is, in fact, evidence of "gross exaggeration" that undermines all claims of service connection and all claims of increased ratings in this case. The Board cannot ignore such evidence. Similarly, the Board finds it significant that while at the September 2009 VA hemorrhoids examination it was noted that the Veteran had deflated external hemorrhoids which were not active with no anemia or bleeding and tender internal hemorrhoids with no evidence of thrombosed hemorrhoids or rectal prolapse and this medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Tellingly, as to his service-connected PTSD, right knee disorder, and hemorrhoids, the Board finds that at all times from August 19, 2008, to December 8, 2014, the Veteran has competently reported on having problems with a depressed mood, anxiety, sleep impairment, and memory loss as well as right knee pain and lost motion, and anal tenderness (i.e., observable adverse symptomatology) (see Davidson, supra.) and the medical record show his adverse symptomatology was limited to, in substance, a depressed mood, anxiety, chronic sleep impairment, mild memory loss, a flattened affect, circumstantial, circumlocutory or stereotyped speech, impaired judgment, disturbances of motivation and mood as well as right knee pain and lost motion, and tender internal hemorrhoids. See, e.g., VA examinations dated in September 2009, September 2010, and November 2014. The Board also finds that this evidence shows that there is not a reasonable possibility that he is unemployable by reason of his service-connected disabilities even when considering his over two decades of work as a steel worker/crane operator and his high school education. See Ray, supra; Owens, supra. Lastly, the Board finds it significant that the adverse symptomatology reported by the September 2009, September 2010, and November 2014 VA examiners (i.e., a depressed mood, anxiety, chronic sleep impairment, mild memory loss, a flattened affect, circumstantial, circumlocutory or stereotyped speech, impaired judgment, disturbances of motivation and mood as well as right knee pain and lost motion, and tender internal hemorrhoids) is contemplated by the rating criteria and limited to the criteria for 30 percent and 50 percent level of disability for PTSD, a 10 percent level of disability for the right knee disorder, and noncompensable level of disability for hemorrhoids. See 38 C.F.R. §§ 4.71a, 4.114, and 4.130, Diagnostic Codes 5010-5260, 7336, and 9411. Given the above complaints and medical history, the Board finds that the preponderance of the evidence shows that the 30 percent/50 percent ratings for PTSD, 10 percent rating for the right knee disorder, and noncompensable rating for hemorrhoids he receives for the disabilities and compensates him for the adverse symptomatology reported by the September 2009, September 2010, and November 2014 VA examiners as well as the adverse symptomatology documented in his medical records and/or reported by the appellant. Id. The best evidence in this case provides evidence against this claim because it shows that there is not a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities even when considering his over two decades of work as a steel worker/crane operator and his high school education. See Ray, supra; Owens, supra. The finding above is not meant to suggest that the Veteran does not have some problems because of his service-connected disabilities. If there were no problems, there would be no basis for the compensation levels from August 19, 2008, to December 8, 2014. In this regard, as cited above, it is vital for the Veteran to understand that not all medical evidence in this case supports the current findings, let alone higher ratings. There is significant evidence in this case against the current findings. It is only with taking into consideration his complaints and all reasonable doubt that the current findings can be justified. The Board has considered above if the Veteran's claim for the period from August 19, 2008, to December 8, 2014, should be referred to the Under Secretary for Benefits or the Director, Compensation Services for extraschedular consideration which consideration takes into account his work experience (i.e., over two decades of work as a steel worker/crane operator) and level of education (i.e., four years of high school) as directed by the JMR. However, the Board finds that the preponderance of the evidence shows that the adverse symptomatology caused by the Veteran's service-connected PTSD, right knee disorder, and hemorrhoids do not meet the criteria for referral for extraschedular consideration at any time from August 19, 2008, to December 8, 2014, because the preponderance of the evidence in the form of the above VA examinations shows that there is not a reasonable possibility that he is unemployable by reason of his service-connected disabilities because his only adverse symptomatology is both contemplated and consider by the rating criteria even when considering his over two decades of work as a steel worker/crane operator and his high school education. See 38 C.F.R. §§ 4.71a, 4.114, and 4.130, Diagnostic Codes 5010-5260, 7336, and 9411; Ray, supra; Owens, supra. Accordingly, the Board finds that the claim for a TDIU is denied at all times from August 19, 2008, to December 8, 2014. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16; Owens, supra; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In reaching the above conclusion, the Board has not overlooked the Court's holding in Withers, supra, nor his level of education (i.e., four years of high school) as directed by the JMR. However, the above adjudication is denying the claim for a TDIU under 38 C.F.R. § 4.16(a) because the Veteran does not meet the schedular criteria from August 19, 2008, to December 8, 2014, and the discussion does not include a "sedentary work" nor a level of education discussion because they are not pertinent to the denial. Likewise, the above discussion is denying a referral under 38 C.F.R. § 4.16(b) because the preponderance of the evidence in the form of the above VA examinations shows that there is not a reasonable possibility that he is unemployable by reason of his service-connected disabilities because his only adverse symptomatology is both contemplated and consider by the rating criteria from August 19, 2008, to December 8, 2014, and the discussion considers the Veteran's level of education but does not include a "sedentary work" discussion. Therefore, the Board finds that the above TDIU discussion addressed the concerns raised in the JMR because it complies with the Court's holding in Withers, supra, as well as considers the Veteran's level of education. II. From December 8, 2014, to May 1, 2018 As noted above, the record shows that the Veteran met the schedular requirements of 38 C.F.R. § 4.16(a) from December 8, 2014, to May 1, 2018, because he has one disability rated as 40 percent or higher and he has a combined rating of 70 percent or higher. Therefore, the next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment from December 8, 2014, to May 1, 2018. See 38 C.F.R. § 4.16(a). As to the Veteran being able to work perform physically demanding jobs, including his past employment as a steel worker/crane operator and other possible employment that could make use of his work experience and his 4-years of high school, as well as non- physically demanding jobs, the Board finds that the record shows that the problems caused by his service-connected PTSD, right and left knee disorders, hemorrhoids, tinnitus, right ear hearing loss, and sleep apnea adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers, and carry out the tasks required by employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected PTSD, right and left knee disorders, tinnitus, right ear hearing loss, and sleep apnea make it dangerous for the Veteran and his co-workers for him to work in most physically demanding jobs including his past employment as a steel worker/crane operator. Id. Similarly, the Board finds that that the problems caused his service-connected PTSD, hemorrhoids, tinnitus, right ear hearing loss, and sleep apnea would make it very difficult to learn the new skills needed to work in most non-physically demanding jobs for the first time and thereafter interact with his co-workers as well as any customers and carry out the duties required by such employment. Id. Given the above, the Board finds that the Veteran's service-connected disabilities prevented him from securing or following a "substantially gainful" occupation from December 8, 2014, to May 1, 2018, given his prior vocational history, work experience, his education, and the impact his service-connected PTSD, right and left knee disorders, hemorrhoids, tinnitus, right ear hearing loss, and sleep apnea would have maintaining physically demanding and non-physically demanding employment. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities rendered him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment at all times from December 8, 2014, to May 1, 2018, and the claim for a TDIU for this time period is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, as above, the Board has not overlooked the Court's holding in Withers, supra, as directed by the JMR. However, as the above adjudication is granting the claim for a TDIU under 38 C.F.R. § 4.16(a) at all times from December 8, 2014, to May 1, 2018, the Board finds that any discussion of the Veteran's ability to perform sedentary and non-sedentary work is harmless error. Conclusion In reaching all the above conclusions, the Board has once again considered the doctrine of reasonable doubt. See 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims to the extent outlined above, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.