Citation Nr: 21066405 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-10 663 DATE: October 29, 2021 ORDER An initial disability rating in excess of 10 percent based on limited flexion of the right knee is denied. An initial disability rating in excess of 10 percent based on limited flexion of the left knee is denied. Throughout the appeal period, a separate 10 percent rating for limited extension of the right knee is granted. Throughout the appeal period, a separate 10 percent rating for limited extension of the left knee is granted. An initial disability rating in excess of 10 percent based on instability of the right knee is denied. An initial disability rating in excess of 10 percent based on instability of the left knee is denied. A total disability rating based on individual unemployability (TDIU) prior to November 7, 2012 is denied. REMANDED Service connection for a sinus disability is remanded. Service connection for a pulmonary disability is remanded. Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability is not manifested by flexion limited to 30 degrees or worse. 2. The Veteran's left knee disability is not manifested by flexion limited to 30 degrees or worse. 3. Throughout the appeal period, the right knee disability has been manifested by pain and functional limitation most nearly approximating extension limited to 10 degrees. 4. Throughout the appeal period, the left knee disability has been manifested by pain and functional limitation most nearly approximating extension limited to 10 degrees. 5. The Veteran's right knee disability is not manifested by moderate recurrent subluxation or lateral instability. His right knee disability does not involve a sprain or ligament tear and he has not undergone right knee surgery. 6. The Veteran's left knee disability is not manifested by moderate recurrent subluxation or lateral instability. His left knee disability does not involve a sprain or ligament tear and he has not undergone left knee surgery. 7. Prior to November 7, 2012, the Veteran's service-connected disabilities did not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for the right knee disability based on limited flexion are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a disability rating in excess of 10 percent for the left knee disability based on limited flexion are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. Throughout the appeal period, the criteria for a separate, 10 percent disability rating based on limited extension of the right knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5261. 4. Throughout the appeal period, the criteria for a separate, 10 percent disability rating based on limited extension of the left knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5261. 5. The criteria for an initial disability rating in excess of 10 percent for the right knee disability based on instability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5257. 6. The criteria for a disability rating in excess of 10 percent for the left knee disability based on instability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5257. 7. Prior to November 7, 2012, the criteria for entitlement to a TDIU were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to April 1991 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2013 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In October 2015, the Veteran testified during a hearing before a Decision Review Officer at the VA Regional Office. A transcript of that hearing is of record. In November 2019, the Veteran and Dr. B. testified before the undersigned during a hearing in Washington, D.C. A transcript of that hearing is also of record. 1. An initial disability rating in excess of 10 percent based on limited flexion of the right knee is denied. 2. An initial disability rating in excess of 10 percent based on limited flexion of the left knee is denied. 3. Throughout the appeal period, a separate 10 percent rating for limited extension of the right knee is granted. 4. Throughout the appeal period, a separate 10 percent rating for limited extension of the left knee is granted. 5. An initial disability rating in excess of 10 percent based on instability of the right knee is denied. 6. An initial disability rating in excess of 10 percent based on instability of the left knee is denied. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Disabilities of the knee and leg are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. VA's rating schedule provides for ratings of 10, 20, 30, 40, and 50 percent for limitation of extension of the knee to 10, 15, 20, 30, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The rating schedule also provides ratings of 10, 20, or 30 percent where there is limitation of flexion of the knee to 45, 30, or 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. For rating purposes, a normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability, is rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, changes were made to the regulations pertaining to the knee. Specifically, Diagnostic Codes 5257 and 5262 were amended; the remaining diagnostic codes were left unchanged. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5262). Under the revised version of DC 5257, a 30 percent rating is assigned for recurrent subluxation or instability: unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned for recurrent subluxation or instability with one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is assigned for recurrent subluxation or instability with sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability, a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 10 percent is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Notes following the amended version of DC 5257 include the following: Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon, and Note (2): 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). As for DC 5262, the former version of the code provided ratings solely for impairment of the tibia and fibula. A 40 percent rating was assigned for nonunion with loose motion and requiring brace. For malunion, a 30 percent rating was assigned for a marked knee or ankle disability, a 20 percent rating was assigned for a moderate knee or ankle disability, and a 10 percent rating was assigned for a slight knee or ankle disability. The amended version of DC 5262 still applies to impairment of the tibia and fibula, and a 40 percent rating is still assigned for nonunion with loose motion and requiring brace. For malunion, the rater is directed to evaluate the disability under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. The revised version of DC 5262 provides additional ratings for medial tibial stress syndrome or shin splints. A 30 percent rating is assigned where both lower extremities are affected, treatment is required for no less than 12 consecutive months, and the condition is unresponsive to surgery and either shoe orthotics or other conservative treatment. A 20 percent rating is assigned where one lower extremity is affected, treatment is required for no less than 12 consecutive months, and the condition is unresponsive to surgery and either shoe orthotics or other conservative treatment. A 10 percent rating is assigned where one or both lower extremities are affected, treatment is required for no less than 12 consecutive months, and the condition is unresponsive to either shoe orthotics or other conservative treatment. A noncompensable rating is assigned where one or both lower extremities are affected, and treatment is for less than 12 consecutive months. In the November 2013 rating decision on appeal, the VA Regional Office granted service connection for patellofemoral pain syndrome in the right and left knees. The Veteran was assigned separate, 10 percent ratings based on limited flexion in each knee pursuant to 38 C.F.R. § 4.71a, DC 5260. In March 2020, the Board remanded the claims for further development. In an August 2020 rating decision, the VA Regional Office awarded separate ratings for instability of the right and left knees. The Veteran was assigned separate, 10 percent ratings pursuant to 38 C.F.R. § 4.71a, DC 5257. The Board finds the matter of higher ratings for these disabilities to be part and parcel of the present appeal and has included them on the title page. In February 2021, the Board remanded the claims for further development. The Board's analysis will focus specifically on what evidence is needed to substantiate the claims, and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The probative evidence here largely consists of the VA examination reports, private medical records, and hearing testimony discussed below. The remaining records were considered, but generally do not contain the specific information sufficient for rating the disabilities under the applicable rating criteria. Also, as a matter of clarification, to the extent the Veteran has rendered his own medical opinions, as an optometrist, his competence in rendering opinions outside the general area of eye health is limited. While he is fully competent to report his knee symptoms, he does not have the medical expertise to render medical findings on the symptomatology necessary for establishing particular knee ratings under the applicable rating criteria. On VA examination in August 2013, the Veteran reported constant pain, and flare-ups limiting his ability to walk, stand, or climb for prolonged periods of time. On examination, in both knees flexion was to 100 degrees with pain beginning at 100 degrees, and extension was to 0 degrees without objective evidence of pain. The Veteran could perform repetitive-use testing with no change in his range of motion. He experienced pain, weakness, fatigability, and incoordination, but there was no additional limitation of his functional ability during flare-ups or on repetitive use. Muscle strength testing was normal bilaterally. Joint stability testing was normal bilaterally. There was no history of recurrent patellar subluxation or dislocation. The Veteran reported having a history of painful shin splints. He had a history of a meniscal condition with frequent episodes of pain bilaterally. He had not undergone a meniscectomy or other surgical procedure. He did not require the use of any assistive devices. In a July 2014 private medical report, Dr. B. found that the knees were painful and warm to the touch bilaterally. There was pain bilaterally in the Veteran's range of motion. Flexion was limited to 110 degrees bilaterally, and extension was limited to 40 degrees bilaterally. While the report actually states that extension was to 140 degrees, Dr. B. clarified at the November 2019 hearing that extension was limited to 40 degrees. In a September 2016 VA treatment record, the Veteran had good balance and a steady gait. The examiner noted that his range of motion was normal. On VA examination in September 2017, the Veteran reported that his bilateral knee disabilities had worsened. He used a cane due to cervical and lumbar spinal stenosis, and he had recently been diagnosed with multiple sclerosis. He denied having flare-ups. He stated that he could barely walk. He was unable to demonstrate an active range of motion, but the examiner noted that flexion was to 100 degrees bilaterally in passive motion. There was no ankylosis. There was no pain with weight-bearing. The Veteran did not perform repetitive-use testing. While pain, weakness, fatiguability and incoordination significantly limited functional ability, the examiner found this was due to multiple sclerosis, not the service-connected knee disabilities. Joint stability testing was normal. There was no history of recurrent effusion. The Veteran did not have a history of recurrent patellar dislocation, shin splints, stress fractures, or other tibial and/or fibular impairment. He did not have a meniscal condition. In a November 2019 Disability Benefits Questionnaire completed by Dr. B., the Veteran reported pain and a decreased range of motion. Flexion was limited to 110 degrees bilaterally, and extension was limited to 40 degrees bilaterally. The Veteran could perform repetitive-use testing. In one portion of the report, Dr. B. stated there was no change in the Veteran's range of motion on repetitive use, and in another portion he stated the opposite. Functional loss included less movement than normal, more movement than normal, weakness, disturbance of locomotion, and interference with sitting and standing. Pain, weakness, fatiguability and incoordination significantly limited functional ability during flare-ups or on repetitive use, but the loss of motion was not quantified. There was no history of recurrent subluxation or lateral instability. The Veteran did not have a history of recurrent patellar dislocation, shin splints, stress fractures, or other tibial and/or fibular impairment. He had a meniscal condition with frequent episodes of joint locking, pain, and effusion. Dr. B. stated the Veteran should use a brace, cane, and walker constantly. At the November 2019 hearing, the Veteran testified that he has pain throughout his range of motion. Pain was increased with prolonged walking, climbing up and down steps, and prolonged standing. He testified that he additionally had instability in the knees bilaterally. On VA examination in July 2020, the Veteran reported increased pain which impacted his daily activities. He reported that he could not walk long distances. He denied having flare-ups. On examination, his range of motion was normal. Flexion was to 140 degrees bilaterally, and extension was to 0 degrees bilaterally. There was no ankylosis. There was pain in both flexion and extension. There was pain with weight-bearing as well as non-weight bearing, and in passive and active motion. The Veteran could perform repetitive-use testing with no additional loss of function or range of motion. Pain significantly limited functional ability with repeated use over time, although the examiner could not quantify the loss in terms of range of motion due to variability in the Veteran's reports of his limitations and the severity. Additionally, the Veteran could not reliably demonstrate any range of motion loss after repetitive use and prior medical records did not provide sufficient information. There was no history of recurrent subluxation or lateral instability. There was no history of recurrent effusion. Joint stability testing was normal. The Veteran did not have a history of recurrent patellar dislocation, shin splints, stress fractures, or other tibial and/or fibular impairment. He did not have a meniscal condition. He used a walker for achilles support. The examiner clarified that all findings were made as due to the service-connected knee disabilities, and not multiple sclerosis. In an August 2020 VA physical therapy record, the Veteran was noted to have a full range of motion in the bilateral lower extremities. In a January 2021 VA physical therapy record, the Veteran was noted to have a normal active range of motion in the knees. Considering the pertinent evidence in light of the governing legal authority, the Board finds the preponderance of the evidence is against the assignment of initial ratings in excess of 10 percent for either knee based on limited flexion pursuant to 38 C.F.R. § 4.71a, DC 5260. As noted, the next higher rating contemplates flexion limited to 30 degrees. The record indicates that flexion was to 100 degrees bilaterally on VA examination in August 2013, 110 degrees bilaterally in July 2014, 100 degrees bilaterally in passive motion in September 2017, 110 degrees bilaterally in November 2019, and 140 degrees bilaterally on VA examination in July 2020. The Board also finds insufficient evidence to support a finding that the Veteran's pain is so disabling as to actually or effectively limit knee motion to such an extent as to warrant the assignment of any higher rating for either knee under 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Veteran could perform repetitive use testing on examinations in August 2013, November 2019, and July 2020. There was no additional limitation of his functional ability during flare-ups or on repetitive use on VA examination in August 2013 or in July 2020. He denied having flare-ups in September 2017 and July 2020. In short, while the records indicate that the Veteran clearly experiences pain with resulting functional impairment bilaterally, it does not approximate the level of severity as described by the next higher rating under DC 5260 with flexion limited to 30 degrees. The Board thus finds that pain and functional loss has already been considered in awarding the current ratings. However, the Board finds that the Board finds that separate, 10 percent ratings are warranted for each knee based on pain and functional limitations in extension. VA General Counsel opinion, VAOPGCPREC 9-2004, provides that separate ratings may be assigned under Diagnostic Codes 5260 and 5261 for disability of the same joint where there is both compensable limitation of flexion and extension. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that pain may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.59 states that the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Further, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See also Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that painful motion warrants the assignment of the minimum compensable rating for limitation of motion of the affected joint). Here, in the July 2014 and November 2019 reports of Dr. B., as well as on VA examination in July 2020, there was pain in extension that limited movement, thus supporting the assignment of separate 10 percent ratings bilaterally. However, the preponderance of the evidence is against any higher ratings based on limited extension. While Dr. B. found that extension was limited to 40 degrees, this in contrary to the bulk of the remaining evidence. Extension was normal to 0 degrees on VA examination in August 2013, in a September 2016 VA treatment record, on VA examination in July 2020, in a physical therapy record dated from August 2020, and in a physical therapy record dated from January 2021. As such, separate, 10 percent, but no higher ratings, are warranted for the right and left knee disabilities based on limited extension. As for DC 5257, considering the pertinent evidence in light of the governing legal authority, the Board finds the preponderance of the evidence is against the assignment of initial ratings in excess of 10 percent for either knee based on instability under either version of the regulations. On each VA examination conducted, the examiner conducted stability testing with normal results bilaterally. Testing was conducted for anterior instability, posterior instability, medial-lateral instability, and lateral instability. The Board has considered the Veteran's hearing testimony and written statements indicating that his knees are unstable, but finds the objective evidence, in the form of joint stability testing, more probative than the lay statements. Moreover, as contemplated by the revised version of DC 5257, every VA examiner found no history of "recurrent" subluxation or lateral instability, and there is no indication of "persistent" instability. Similarly, the record does not indicate a sprain or ligament tear of either knee, and the Veteran has not undergone any knee surgery. The Board considered all other diagnostic codes pertaining to the knee. As ankylosis was not shown on any examination, a rating under DC 5256 is not warranted. Diagnostic Code 5258 is not applicable as the preponderance of the evidence is against a finding of dislocated semilunar cartilage with frequent episodes of locking and joint effusion. To the extent that Dr. B. found the presence of this symptomatology in his November 2019 report, his finding is isolated among the remainder of the evidence. Because the file contains no indication of knee surgery, malunion or nonunion of the tibia or fibula, or genu recurvatum, DCs 5259, 5262, and 5263 are not applicable. With regard to the revised version of DC 5262, while painful shin splints were documented by the August 2013 VA examiner, this was an isolated finding as every other provider and examiner addressing the matter found no shin splints or stress fractures. Moreover, the August 2013 VA examiner made no finding that the condition required treatment for 12 consecutive months or more, or that it was unresponsive to treatment. In awarding the separate ratings herein, the Board has considered the so-called "amputation rule." Specifically, the regulation indicates when assigning ratings, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. Amputation not improvable by prosthesis controlled by natural knee action warrants a 60 percent rating. 38 C.F.R. § 4.71a, DC 5165. Here however, because the ratings assigned do not combine to an amount exceeding 60 percent in either knee, the amputation rule is not implicated. See 38 C.F.R. § 4.25. For all the foregoing reasons, the Board finds that while separate ratings based on limited extension are warranted for each knee, the preponderance of the evidence is against any higher or separate ratings for the Veteran's bilateral knee disabilities. In reaching these decisions, the Board considered the doctrine of reasonable doubt. 7. A TDIU prior to November 7, 2012 is denied. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Here, the claim for a TDIU was placed on appeal by the Board in March 2020 pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) based on an underlying May 2012 claim. The Veteran was subsequently awarded a total schedular rating, effective November 7, 2012. The Board will thus first undertake an analysis of the Veteran's entitlement to a TDIU prior to that date. During the portion of the appeal period dated prior to November 7, 2012, the schedular requirements of 38 C.F.R. § 4.16(a) were met as the Veteran's combined disability rating was 70 percent or higher, and his posttraumatic stress disorder (PTSD) was rated as 40 percent or higher. His service-connected disabilities prior to November 7, 2012 consisted of the following: PTSD; lumbar spine disability; radiculopathy of the right leg; radiculopathy of the left leg; left foot disability; left knee disabilities based on limited flexion, limited extension, and instability; right knee disabilities based on limited flexion, limited extension, and instability; tinnitus, femoral nerve impairment of the left leg; femoral nerve impairment of the right leg, and bilateral hearing loss. See August 2020 Rating Decision Codesheet (most recent codesheet). The Board must therefore determine whether, from the May 2012 filing of the underlying claim (including the one-year look-back period) to November 7, 2012, the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage.") Moore v. Derwinski, 1 Vet. App. 356 (1991). For purposes of analyzing a claim for a TDIU, the Court has defined "substantially gainful employment" as encompassing both an economic and a noneconomic component. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. The economic component of Ray has not been met in this case because the record shows the Veteran was engaged in substantially gainful employment throughout the pertinent portion of the appeal period. Records from the Social Security Administration show that the Veteran was gainfully employed as an optometrist through September 2019, including by his own statement. A July 2014 private medical report of Dr. H. indicated that the Veteran was working. In a September 2016, psychosocial assessment, the Veteran reported to his VA provider that he had been working as an optometrist for the past 16 years, or since September 2000. In November 2016, he was noted to be employed. In April 2017, his VA treating provider documented that he was working full-time as an optometrist. The Board cannot identify evidence to the contrary. To the extent the Veteran has reported having times of unemployment, the surrounding details are unknown. In March 2021, the VA Regional Office asked the Veteran to complete a form entitled, "Veterans Application for Increased Compensation Based on Unemployability" (VA Form 21-8940), in order to obtain pertinent information on his disabilities and employment and educational histories. The Veteran responded in May 2021, stating that he would not complete the requested form because it was "moot." See also May 2021 Supplemental Statement of the Case. As he has not completed this form, VA's efforts have been frustrated in developing the claim. VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193(1991). Where the evidence establishes that a Veteran is substantially gainfully employed, a TDIU cannot be granted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); see also Faust v. West, 13 Vet. App. 342, 356 (2000); 38 C.F.R. § 4.16 (b) (reflecting that, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled). Furthermore, as for the noneconomic component of Ray, the Veteran is not vocationally-limited to the extent that he has a doctorate degree and many years of work experience as a medical professional. He does not have any service-connected disability causing a visual limitation. There is little to no evidence regarding the impact of his remaining service-connected disabilities during the narrow portion of the appeal from May to November 2012. However, as of the time of August 2013 VA examinations, the Veteran's hearing loss impacted work to the extent he had trouble hearing and paying attention, especially in noisy environments. The knee disabilities had no impact on the Veteran's ability to work. The left foot disability impacted work to the extent it limited his ability to run, walk, and stand over prolonged periods of time. The lumbar spine disability impacted work to the extent it caused difficulty in prolonged lifting, carrying, bending, kneeling, squatting, climbing, running, walking, and standing. At the time of an August 2013 psychiatric examination, the Veteran's PTSD resulted in only mild or transient symptoms that decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or the symptoms were controlled by medication. In sum, the economic component of Ray has not been met here as the Veteran was gainfully employed full-time during the pertinent appeal period. The noneconomic component of Ray has also not been met. When assessing the Veteran's service-connected disability picture as a whole, which includes no vocational limitations, no visual limitations, minimal audiological limitations, physical limitations predominantly affecting physical labor, and mild mental limitations, the preponderance of the evidence is against the claim. The Board finds that the ratings assigned for the Veteran's disabilities during the pertinent time period are recognition of the occupational impairment they caused. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. Since November 7, 2012 As noted, the Veteran has been awarded a 100 percent schedular disability rating since November 7, 2012. A TDIU rating and a 100 percent schedular rating based on multiple disabilities generally provide the same benefits, so exchanging one rating for the other would usually serve no purpose. See Locklear v. Shinseki, 24 Vet. App. 311, 314, n. 2 (2011); Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, the distinction between a TDIU and a 100 percent schedular rating matters when entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(s) (SMC(s)) is possible. The Veteran is not currently receiving SMC(s). SMC(s) may be awarded where a veteran has a total schedular rating based on multiple disabilities, but one of the disabilities might support a TDIU rating on its own, and the remaining disabilities could combine to form an additional 60 percent rating. A TDIU rating can qualify for compensation at the 38 U.S.C. § 1114(s) rate, so long as the TDIU is based on a single disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). The single disability requirement of SMC(s) means one disability. The rater cannot use 38 C.F.R. § 4.16(a) to "build" a single disability. Id. Since November 7, 2012, the Veteran has had one disability, PTSD, rated at or above 60 percent, thus meeting the rating threshold for TDIU based on a single disability. See August 2020 rating decision codesheet showing PTSD rated as 70 percent disabling since May 11, 2012. He has additional separate and distinct disabilities that combine to 60 percent by application of 38 C.F.R. § 4.25. Turning to the facts, as noted above, the record shows that the Veteran has a doctorate degree and many years of experience working as an optometrist. As also described above, the record indicates that he was gainfully employed until September 2019. Where the evidence establishes that a Veteran is substantially gainfully employed, a TDIU cannot be granted as a matter of law. See Sabonis, 6 Vet. App. at 426; see also Faust, 13 Vet. App. at 356; 38 C.F.R. § 4.16 (b) (reflecting that, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled). Moreover, on review of the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against a finding of a TDIU based on PTSD alone, and effectively, an award of SMC(s), since November 7, 2012. No examiner or provider during this portion of the appeal period opined that that he is unable to secure or follow substantially gainful employment due to his service-connected PTSD alone. To the contrary, VA psychiatric examiners in August 2013 and July 2020 opted against a finding of total occupational impairment. While Dr. H., in his July 2014 report, found that the PTSD caused the Veteran to be unable to sustain employment, he simultaneously noted that the Veteran was presently working, rendering the opinion of little persuasive value. On numerous occasions throughout his July 2014 report, Dr. B. stated that the Veteran's "total VA medical disabilities" affected his ability to be gainfully employed, rather than finding that PTSD alone rendered him unable to secure or follow employment. Finally, the Veteran was found to be disabled by the Social Security Administration due to a primary diagnosis of multiple sclerosis, with secondary psychiatric diagnoses. As such, after considering all of the lay and medical evidence, the weight of the evidence is against the award of SMC(s) since November 7, 2012. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. REASONS FOR REMAND 1. Service connection for a sinus disability is remanded. 2. Service connection for a pulmonary disability is remanded. 3. Service connection for sleep apnea is remanded. In February 2021, the Board remanded the claims for service connection for a VA medical opinion. On review of the February 2021 VA examination conducted, however, further remand is required. Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As for the sinus disability, contrary to the Board's determination in March 2020 that the disability does not qualify as a "preexisting condition," the February 2021 examiner rendered a legal finding that the disability preexisted service and provided an opinion accordingly. The examiner additionally failed to address the February 2021 Board's inquiry as to whether the disability is attributable to foreign proteins, dust, and smoke in service. In this regard, as discussed in the remand, Dr. B., in hearing testimony and reports from July 2014 and November 2019, attributed the sinus and pulmonary disabilities to foreign proteins, dust, and smoke from military service, however, his rationale was not clearly explained. It is unclear, for example, how Dr. B. was able to narrow the etiology to foreign protein, dust, and smoke exposure from the 1980s/early 1990s, and what information he had on the quantity or composition of these substances. A further opinion addressing this evidence, and opining on the matter of direct service connection (rather than on the matter of a preexisting disability) must be obtained. As for the pulmonary disability, the examiner failed to recognize the diagnosis of chronic bronchitis of record, and found the Veteran does not have a current disability. As with the sinus disability, the examiner also failed to address the February 2021 Board's inquiry as to whether the pulmonary disability is attributable to foreign proteins, dust, and smoke in service. As for the sleep apnea disability, the examiner again failed to address the diagnosis of record, and found the Veteran does not have a current disability. The examiner additionally found that as the service treatment records did not document sleep apnea or the presence of foreign proteins, dust, and smoke, the disability was not related to service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, a clear rationale for the opinions was not provided, and the examiner did not sufficiently address the matter of secondary service connection as directed by the Board. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to obtain an opinion addressing the nature and etiology of his sinus disability with an examiner other than D.G., who completed the February 2021 VA examination report. A complete explanation must be provided for all opinions rendered. (A.) The examiner is advised that Veteran was in sound condition when he entered military service, meaning that he entered service without disability (despite his report of having sinusitis once in the past on the April 1987 Report of Medical History). (B.) Opine on whether it is at least as likely as not that the sinus disability began during active service or is related to an in-service injury, event, or disease, including the bout of sinusitis documented in August 1990. Why do you say so? (C.) Opine on whether it is at least as likely as not that the sinus disability is related to in-service exposure to "foreign protein, dust, and smoke," considering the July 2014 and November 2019 reports of Dr. B., as well as his hearing testimony. Why do you say so? 2. Schedule the Veteran for an examination to obtain an opinion addressing the nature and etiology of his pulmonary disability with an examiner other than D.G., who completed the February 2021 VA examination report. A complete explanation must be provided for all opinions rendered. (A.) In the uniquely pro-claimant VA disability compensation scheme, a veteran can receive disability compensation for any period of time in which he/she was disabled, even if that disability has resolved. Therefore, it is important for us to decide whether a veteran has been or continues to be disabled for any portion of the appeal. Thus, if you disagree with a prior diagnosis, including the prior diagnosis of chronic bronchitis (November 2019 Disability Benefits Questionnaire) with an ongoing prescription for Albuterol (September 2019 VA treatment record), explain why. (B.) Opine on whether it is at least as likely as not that the pulmonary disability began during active service or is related to an in-service injury, event, or disease, including the bout of bronchitis documented in November 1987. Why do you say so? (C.) Opine on whether it is at least as likely as not that the pulmonary disability is related to in-service exposure to "foreign protein, dust, and smoke," considering the July 2014 and November 2019 reports of Dr. B., as well as his hearing testimony. Why do you say so? 3. Schedule the Veteran for an examination to obtain an opinion addressing the nature and etiology of his sleep apnea disability with an examiner other than D.G., who completed the February 2021 VA examination report. A complete explanation must be provided for all opinions rendered. The Veteran is hereby advised that the failure to cooperate in the development of his claim, such as by not completing or providing the results of any required home sleep apnea test (HSAT) without good cause, may have adverse consequences on his claim. 38 C.F.R. § 3.655. (A.) In the uniquely pro-claimant VA disability compensation scheme, a veteran can receive disability compensation for any period of time in which he/she was disabled, even if that disability has resolved. Therefore, it is important for us to decide whether a veteran has been or continues to be disabled for any portion of the appeal. Thus, if you disagree with a prior diagnosis, including the prior diagnosis of sleep apnea (November 2019 Disability Benefits Questionnaire), explain why. (B.) Opine on whether it is at least as likely as not that the sleep apnea disability began during active service or is related to an in-service injury, event, or disease, considering the Veteran's reports of experiencing sleep problems in service. Why do you say so? (C.) Opine on whether it is at least as likely as not that the sleep apnea disability is related to in-service exposure to "foreign protein, dust, and smoke," considering the July 2014 and November 2019 reports of Dr. B., as well as his hearing testimony. Why do you say so? (D.) Opine on whether the sleep apnea disability has been (i.) caused by the service-connected cervical spine disability, or any other service-connected disability OR (ii.) aggravated (i.e., worsened) by the service-connected cervical spine disability, or any other service-connected disability. Why do you say so? M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.