Citation Nr: 21066595 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 10-45 954 DATE: November 1, 2021 ORDER 1. Entitlement to a 60 percent rating for a post-total knee replacement (TKR) left knee disability is granted from April 28, 2014 to August 19, 2014, subject to the regulations governing payment of monetary awards; entitlement to ratings in excess of 30 percent prior to April 28, 2014 and from October 1, 2015, is denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 16, 2020 (to include on an extraschedular basis prior to August 1, 2011) is denied. FINDINGS OF FACT 1. Prior to April 28, 2014, chronic residuals of the Veteran's left knee post-TKR, consisting of severe painful motion and weakness were not shown; ankylosis, limitation of extension at more than 20 degrees, and nonunion or malunion of tibia or fibula were not shown. 2. From April 28, 2014 to August 19, 2014, the Veteran's post-TKR left knee disability manifested as chronic residuals of severe painful motion and weakness. 3. From October 1, 2015, chronic residuals of the Veteran's left knee post-TKR, consisting of severe painful motion and weakness are not shown; ankylosis, limitation of extension at more than 20 degrees, and nonunion or malunion of tibia or fibula were not shown. 4. From February 8, 2011 to October 16, 2020, the Veteran's service-connected disabilities of right hip replacement (rated 100 percent from February 8, 2011, 30 percent from August 1, 2011, and 70 percent from October 16, 2020); left knee TKR (30 percent from September 1, 2001, 60 percent from April 28, 2014 to August 19, 2014, 100 percent from August 19, 2014, and 30 percent from October 1, 2015); depressive disorder (30 percent from October 24, 2017, and 70 percent from September 28, 2020); lumbar strain (10 percent from March 31, 2009); right wrist (10 percent from April 30, 2014); right hip scar (0 percent from February 8, 2011); and post-surgery scar (0 percent from September 28, 2020), were rated (60 percent, combined, from August 1, 2011, 60 percent, combined, from October 1, 2015, 80 percent, combined, from October 24, 2017, and 90 percent, combined, from September 28, 2020) and were not shown to be of such nature and severity as to have prevented him from engaging in regular substantially gainful employment consistent with his education and occupational experience. 5. Prior to February 8, 2011, the Veteran's service-connected disabilities were left knee TKR (rated 30 percent), lumbosacral strain (10 percent from March 31, 2009), and right hip (10 percent from March 31, 2009) and were not shown to have been of such nature and severity as to render him unable to secure and maintain substantially gainful employment; the disabilities had not required frequent hospitalization, caused marked interference with employment, involved any other factors that would render application of regular schedular standards impractical, and warrant referral for consideration of an extraschedular TDIU rating. CONCLUSIONS OF LAW 1. A 60 percent (but no higher) rating for a post-TKR left knee disability is warranted from April 28, 2014 to August 19, 2014; ratings in excess of 30 percent prior to April 28, 2014 and from October 1, 2015, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a; Diagnostic Codes (Codes) 5055, 5256, 5261, 5262. 2. From February 8, 2011 to October 16, 2020, the schedular criteria for a TDIU rating were met, but a TDIU was not warranted; prior to February 8, 2011, the schedular requirements for a TDIU rating were not met, referral for consideration of an extraschedular TDIU rating was not warranted, and a TDIU rating was not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1969 to February 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 Department of Veterans Affairs (VA) rating decision. An interim ( September 2014 ) rating decision increased the rating for left knee TKR disability to 100 percent, effective August 19, 2014 (the date of an additional left TKR procedure), and assigned a 30 percent rating from October 1, 2015. In August 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. In November 2019 and October 2020, the Board remanded the case for further development. [The Veteran had also appealed a denial of service connection for right hip and low back disabilities. An August 2021 rating decision granted service connection for the right hip and low back disabilities, resolving those matters.] The Board has characterized the issue on appeal as entitlement to TDIU prior to October 16, 2020 (as entitlement to TDIU from that date is rendered moot by the assignment of a 100 percent (combined) schedular rating from that date by an August 2021 rating decision). 1. A 60 percent rating for a post-TKR left knee disability is granted from April 28, 2014 to August 19, 2014; ratings in excess of 30 percent prior to April 28, 2014 and from October 1, 2015, are denied. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 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). Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. Id. As the instant claim for increase was received on April 7, 2008, the period for consideration is from April 7, 2007, to the present. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria more favorable to the Veteran will be applied. Prior to the regulatory change, Post-TKR knee disability was rated under Code 5055. A 100 percent rating is to be assigned for 1 year following implantation of prosthesis. Following expiration of the 1-year period, a 30 percent rating is the minimum rating to be assigned for residuals following a total knee replacement. A 60 percent [maximum schedular] rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Codes 5256 (for ankylosis), 5261 (for limitation of extension), or 5262 (for impairment of the tibia and fibula). 38 C.F.R. § 4.71a. From February 7, 2021, under the amended criteria, a 100 percent rating is to be assigned for 4 months following implantation of prosthesis or resurfacing. For total prosthetic replacement of knee joint only, following expiration of the 4-month period, a 30 percent rating is the minimum rating to be assigned for residuals following a total knee replacement. A 60 percent [maximum schedular] rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Codes 5256 (for ankylosis), 5261 (for limitation of extension), or 5262 (for impairment of the tibia and fibula). For resurfacing, following expiration of the 4-month period, evaluate resurfacing under diagnostic Codes 5256 through 5262; there is no minimum evaluation for resurfacing. [The Board notes the above change and that the Veteran had left knee examinations in April 2021; however, since the 1-year period for the last left knee TKR passed in 2014, and the criteria for the 30 and 60 percent ratings following a left knee TKR did not change, the Code changes are not applicable in this case, and no further discussion is necessary.] Under Code 5256, a 30 percent rating is assigned for ankylosis of a knee at a favorable angle (in full extension), or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is assigned for ankylosis of a knee between 20 degrees and 45 degrees. A 60 percent rating is assigned for extremely unfavorable ankylosis of a knee (in flexion at 45 degrees or more). 38 C.F.R. § 4.71a. Under Code 5261, limitation of extension of a leg warrants a 30 percent rating when limited at 20 degrees, a 40 percent rating when limited at 30 degrees, and a (maximum) 50 percent rating when limited at 45 degrees. 38 C.F.R. § 4.71a. Under Code 5262, for impairment of the tibia and fibula, a 30 percent rating is assigned for malunion with marked knee or ankle disability, and a (maximum) 40 percent rating is assigned for nonunion with loose motion requiring a brace. 38 C.F.R. § 4.71a. [The Board also notes that there was a change in the criteria for Code 5262, effective February 7, 2021; however, the Veteran has not experienced (nonunion) of the tibia and fibula at any time under consideration, , and further discussion of the Code change is not necessary.] Normal or full range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may be assigned for compensable limitations of motion, instability, and dislocation of semilunar cartilage. An April 2008 VA treatment record notes that the Veteran reported intermittent left knee pain and mild swelling for the past 2 years. X-rays showed possible decreased space in between the prosthesis, but no osteolysis. A June 2008 VA treatment record notes that the Veteran reported left knee pain and that he had been working 12-hour days in New Orleans helping with post-Katrina clean-up operations. On examination, there was minimal edema and no instability, and it was noted that he did not use an assistive device but had a slight limp. On February 2009 VA general examination, the Veteran reported that he had not been exercising due to continued left knee, right hip, and low back pain. He related that he used a cane and could only walk less than a block before needing to stop and rest. He reported that he had left knee intermittent pain and chronic swelling and that after his left TKR in 2000, he attempted multiple jobs. He worked in New Orleans for 8 months after Katrina doing physically demanding work, but indicated that it was currently difficult for him to perform manual labor. On examination, it was noted that he had mild left knee pain, and walked with a limp. Left knee range of motion (ROM) studies showed flexion was to 108 degrees, extension was to 0 degrees, and pain was noted at 108 degrees. X-rays showed a well-positioned and well-fixed left total knee arthroplasty with no evidence of gross radiolucencies. The impression was post left total knee arthroplasty with mild arthrofibrosis; the examiner opined that the Veteran was able to perform "desk type" work. On May 2009 VA examination, the Veteran reported that his left knee would periodically become weak and swollen, he sometimes experienced decreased sensation on the top of the knee and pain on the sides of the knee, he could not walk for more than 10 minutes, and used a cane for ambulation. On examination, there was no left knee swelling, erythema, obvious deformity, ecchymosis, or joint effusion. There was some tenderness to palpation along the medial collateral ligament insertion, but no laxity of valgus or varus stress at full extension and 30 degrees of flexion. ROM testing showed flexion to 100 degrees and extension to 0 degrees, without painful limitation. The examiner indicated that ROM testing during passive motion, active motion, and three repetitive motions was the same. There was no loss of joint function with use due to pain, weakness, fatigability, incoordination, or flare ups, muscle strength was normal, and there was no evidence of instability. A September 2011 VA treatment record notes that the Veteran reported left knee pain after a recent fall. On examination, there was suprapatellar swelling, and he was not able to flex fully due to pain, but there was no effusion. X-rays showed no evidence of recent fracture or bony displacement. A May 2012 VA treatment record notes that the Veteran had no difficulty walking, reported normal sleep, and had no problems with activities of daily living (ADLs). A June 2012 VA treatment record notes that the Veteran reported mild daily left knee pain with everyday activities, some intermittent stiffness and locking of his left knee that occurred randomly while walking, and no instability. A September 2012 VA treatment record notes that the Veteran reported left knee stiffness and pain and that he sometimes felt that his left knee was unstable while walking. He stated that he was able to walk a couple of blocks and then had to stop due to pain. ROM testing showed flexion to 110 degrees and extension to 0 degrees. An October 2012 VA treatment record notes that the Veteran reported left knee pain over the patellar tendon after a fall several months prior. On examination, the pain was noted to be anterior, and no instability was shown. ROM testing showed flexion to 115 degrees and extension to 0 degrees. There was no tenderness or instability with varus valgus stress applied. X-rays showed that the left knee implants were in place, there was stable alignment, and there was no evidence of component failure. A July 2013 VA treatment record notes that the Veteran had been working with physical therapy for a few months and had experienced some improvement, but no resolution. He reported left knee pain of 5/10, that he took Hydrocodone as needed, and that he reported he had no current left knee instability. A November 2013 VA treatment record notes that the Veteran reported left knee pain that had been increasing in severity over the last year. On examination, ROM in his left knee was full, there was tenderness to palpation over the lateral and medial aspects of the knee, and no joint laxity or pain on valgus or varus stress was shown. A January 2014 VA treatment record notes that the Veteran reported worsening knee pain after a recent fall, but there was no explanation regarding whether the fall was due to the left knee. On examination, no left knee numbness, tingling, or weakness was noted. An April 28, 2014 VA treatment record notes that the Veteran reported that he was working in his garage when his left knee "gave out" and he fell onto his outstretched right hand. He underwent closed reduction/splinting for a right wrist injury. He related that he experienced left knee pain with activity, especially traversing stairs, and instability, which he asserts had caused several falls. On examination, it was noted that he had an antalgic gait, and that he used a cane for support. ROM testing showed flexion to 115 degrees and extension to 2 degrees. Mild global laxity in varus and valgus was shown on full extension, mid-flexion, and 90 degrees of flexion. X-rays showed no signs of loosening, but there was possible tibial wear. A CT scan found no obvious signs of loosening at the metal/bone interface, and the femoral rotation appeared to be in good position. The provider indicated that the TKR components were in good position, but there was concern for poly wear. On May 2014 aid and attendance examination, right distal radius fracture and left knee polyethylene wear (use of a left knee brace) were diagnosed. Regarding the left knee, the Veteran reported that he was unable to walk, sit, or stand for a prolonged period, had difficulty traversing stairs, and used a cane for ambulation. A June 2014 VA treatment record notes that the Veteran reported moderate to severe left knee pain, continued instability, and difficulty walking. In August 2014, the Veteran underwent an additional left total knee arthroplasty to revise the 2000 arthroplasty. As noted above, an interim (September 2014) rating decision increased the rating for left knee TKR disability to 100 percent, effective August 19, 2014 (the date of a revision left TKR procedure), and assigned a 30 percent rating from October 1, 2015. An August 2014 (post left knee TKR) VA treatment record notes that the Veteran was moderately independent, used a cane, could drive, could manage his own finances, and repaired cars as a hobby. He related that he did most of the cooking and cleaning in his home because his wife worked full-time, and that he liked to walk his dog. A June 2015 VA treatment record notes that on examination, left knee moderate effusion was noted, and ROM testing showed flexion to 110 degrees and extension to 0 degrees. On August 2017 VA knee examination, left knee strain and left knee osteoarthritis were diagnosed. The Veteran reported flare-ups that consisted of pain and stiffness and regular use of a cane. The functional loss due to flare-ups was described as less knee motion. Left knee ROM testing showed flexion to 100 degrees and extension to 0 degrees, and it was noted that the ROM contributed to functional loss, which consisted of less motion. Pain on flexion that caused functional loss was also noted on examination. There was no pain with weight-bearing or passive ROM, and no crepitus was found. The Veteran could perform repetitive use testing with no additional functional loss or loss of ROM; it was noted that he was not being examined immediately after repetitive use or during a flare-up. The examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during flare-ups. Muscle strength testing and joint stability testing were normal, and no atrophy or ankylosis was shown. The examiner opined that the total knee replacement residuals consisted of intermediate degrees of residual weakness, pain, or limitation of motion. A scar noted measured 15 cm by 1 cm and was not painful or unstable. The examiner opined that the Veteran was able to do sedentary work. At the August 2019 videoconference hearing, the Veteran testified that his left knee disability had increased in severity since his last examination. On December 2019 VA knee examination, left knee synovitis was diagnosed. The Veteran reported that he continued to experience constant, chronic left knee pain that has been progressively worsening over the past few years. He related that he believed his left leg "gave out" on him around Thanksgiving 2019, resulting in a fall down a flight of stairs and a head contusion. He was subsequently evaluated at the Hines VA Medical Center in December 2019 for dizziness and balance issues that were determined likely due to labyrinthitis. He indicated there was no increased knee pain with walking, but reported he used a walker since the fall due to a fear of falling again. He currently described a constant level of left knee pain of 5/10 intensity. He related that his left knee pain was worse with climbing stairs. The examiner noted that the Veteran's medical workup was unrevealing of a structural, inflammatory, or infectious cause for his complaints of increased left knee pain. He drove himself to the appointment, reported no flare-ups, but did describe limited tolerance for prolonged walking and climbing up stairs. ROM testing showed left knee flexion to 100 degrees and extension to 0 degrees, and it was noted that the ROM did not contribute to functional loss. Pain was noted on examination that did not result in functional loss. There was pain on flexion, some tenderness to palpation of the knee joint, and no pain with weight-bearing. There were subjective reports of pain on passive and active ROM testing of the knee joints with pain reported between 90 and 100 degrees on left knee flexion. There was no evidence of pain when the knee joints were in non-weight-bearing. The circumference of the left knee was 42 cm compared to 39.5 cm in the right knee, and it was noted that these findings are consistent with chronic swelling in the left knee due to a past history of synovitis and degenerative joint disease (DJD) status post total left knee arthroplasty. There was no crepitus; the Veteran could perform repetitive use testing with no additional functional loss or loss of ROM, and the examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time, and muscle strength testing was normal. There was no ankylosis, and stability testing was normal. The examiner noted that the Veteran sustained a left knee meniscal tear prior to his left total knee arthroplasty in 2000, and noted that after the second left knee TKR in 2014, the residual signs or symptoms resulted in pain on flexion during range of motion testing. A left knee scar was 22 cm by .75cm and was not painful or unstable and did not result in functional loss. October 2019 left knee X-rays showed no evidence of acute fracture or dislocation. There was a well-aligned, cemented, total knee arthroplasty component without evidence of loosening, osteolysis, poly-wear, or periprosthetic fracture. Regarding functional impact, the examiner opined that the Veteran could have problems in an occupational setting performing jobs that involved strenuous physical work and prolonged weightbearing such as prolonged walking, standing, or repetitive stair climbing, but could tolerate work that fell in the sedentary to light duty range of physical demand. The examiner further opined that the Veteran had a left knee disability of mild to moderate severity. A January 2020 VA treatment record notes that the Veteran reported intermittent left knee pain and increased left knee soreness and stiffness following much driving over the past few days. On examination, it was noted that he ambulated with mild antalgia, had fair to poor use of stairs, and rises from sitting without assistance. A March 2020 VA treatment record notes that the Veteran reported medial and lateral left knee pain. On examination, he had a slightly antalgic gait, and left knee ROM testing showed flexion to 100 degrees and extension to 0 degrees. A CT scan showed postoperative changes of cemented total knee arthroplasty with patellar resurfacing, intact hardware without periprosthetic lucency to suggest loosening, no evidence of fracture, and small joint effusion. A December 2020 private left knee disability benefits questionnaire (DBQ) notes that the provider did not review the Veteran's claims file or any of his VA or private treatment records. Left knee arthritis and left knee TKR were diagnosed. The Veteran reported that his left knee pain had increased in severity since his last evaluation. He related that when he experienced daily flare-ups, he had increased knee pain (to 8/10), decreased ROM, increased weakness and fatigability, stiffness, and popping, all which contribute to functional loss. The Veteran reported that he had difficulty bending, twisting, kneeling, squatting, climbing stairs, and lifting, and that he had difficulty walking, standing, sitting, and lying down for an extended period of time. Left knee ROM testing showed flexion to 75 degrees and extension to 0 degrees, and the provider indicated that the ROM contributed to functional loss. Left knee ROM after repetitive use testing showed flexion to 65 degrees and extension to 0 degrees. The provider noted that left knee ROM was painful on active, passive and/or repetitive motion testing and in weight-bearing or non-weight-bearing that contributed to functional loss or loss of ROM, and indicated that the factors that contributed to the disability included less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, disturbance of locomotion, and interference with sitting and standing. No further information was provided. An April 2021 VA treatment record notes that the Veteran ambulated with a stiff antalgic gait and used a cane. On April 7, 2021 VA knee examination, left knee TKR and left knee chronic synovitis were diagnosed. The Veteran reported left knee pain, no current flare-ups, and that he had difficulty walking and standing for prolonged periods. Left knee ROM testing showed flexion to 90 degrees and extension to 0 degrees, with pain on flexion and extension. Passive ROM was the same as active ROM. Pain was noted on weight-bearing that caused functional loss, which manifested as difficulty walking and standing for an extended period. There was no crepitus or pain on palpation of the knee joint. The Veteran was able to perform repetitive motion testing with no additional loss of function or ROM. It was noted that the examination was not being conducted immediately after repeated use over time or during a flare-up and that the statements from the Veteran did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability after repeated use over time or during a flare-up. There was no muscle atrophy or ankylosis, and joint stability testing was normal. It was noted that left knee pain was a left TKR residual. There was no tibial or fibular impairment. On April 21, 2021 VA knee examination, left knee TKR and left knee chronic synovitis were diagnosed. The Veteran reported current left knee pain of 3/10, that he took Hydrocodone as needed for pain, and that he could still drive. He reported frequent moderately severe left knee flare-ups that lasted 20-30 minutes per episode and were precipitated by walking, and alleviated by time, brace, and Hydrocodone use. He related that he did not have any functional loss or impairment of the left knee after repeated use over time, and no current instability or subluxation. He reported constant use of a brace and cane. Left knee ROM testing showed flexion to 100 degrees and extension to 0 degrees, pain was noted on flexion and extension, and the ROM did not result in functional loss. Passive ROM was the same as active ROM, and pain was noted on weight-bearing, non-weight-bearing, active motion, and passive motion, and on rest that did not result in functional loss. Crepitus was not shown, but there was tenderness to palpation of the knee joint. The Veteran was able to perform repetitive use testing with no additional loss of function or loss of ROM. He was not examined immediately after repeated use over time, but a statement by the Veteran (that he has moderate left knee pain) suggested that pain and weakness cause functional loss. The estimated ROM after repeated use over time was flexion to 100 degrees and extension to 0 degrees. It was noted that the examination was being conducted during a flare-up and that pain, fatigability, weakness, lack of endurance, and incoordination cause functional loss. The estimated ROM after flare-up was flexion to 100 degrees and extension to 0 degrees (based on the Veteran's report of moderate left knee pain). It was noted that the left knee disability caused interference with standing and sitting, disturbance of locomotion, less movement than normal, weakened movement, and instability of station. There was no muscle atrophy or ankylosis. Recurrent subluxation and/or instability were not shown. Stability testing was normal. It was noted that the Veteran did not have a diagnosis of tibial or fibular impairment. The provider indicated that the Veteran's TKR residuals consisted of intermediate degrees of residual weakness, pain, or limitation of motion. Prior to April 28, 2014, the Veteran's post-TKR left knee disability has been rated 30 percent under Code 5055 for intermediate degrees of residual weakness, pain, or limitation of motion. The Board finds that at no time prior to April 28, 2014, was the post-TKR left knee disability shown to have been manifested by chronic residuals of severe painful motion or weakness (so as to warrant a 60 percent rating under Code 5055) or by ankylosis, limitation of extension at more than 20 degrees, or malunion or nonunion of tibia and fibula (so as to warrant an intermediate rating under Codes 5256, 5261, or 5262. On February 2009 VA examination, he reported that he used a cane and could only walk less than a block before needing to stop and rest (presumably due to his right hip, low back, and left knee pain). On examination, it was noted that he had mild left knee pain, and walked with a limp. Left knee ROM testing showed flexion was to 108 degrees, extension was to 0 degrees, and pain was noted at 108 degrees. On May 2009 VA examination, he Veteran reported periodic left knee pain and weakness, and ROM testing showed flexion to 100 degrees and extension to 0 degrees, without painful limitation, and the ROM remained the same with passive motion, active motion, and three repetitive motions. There was no loss of joint function with use due to pain, weakness, fatigability, incoordination, or flare ups, muscle strength was normal, and there was no evidence of instability. A June 2012 VA treatment record notes that the Veteran reported mild daily left knee pain with everyday activities, some intermittent stiffness and locking of his left knee that occurs randomly while walking, and no instability. Although a September 2012 VA treatment record notes that he reported difficulty walking due to left knee pain, instability was not shown on examination or reported by the Veteran in October 2012 and July 2013 VA treatment records, and a November 2013 VA treatment record notes that there was full left knee ROM, and no joint laxity or pain on valgus or varus stress was shown. Malunion or nonunion of tibia or fibula is not shown in the record prior to April 28, 2014, and has not been alleged. The disability picture presented is not one of TKR residuals of severe painful motion or weakness (or approximating such severity) and the symptoms warranting and impairment warranting a 60 percent rating or an intermediate rating between 30 and 60 percent are simply not shown (or approximated). The Board acknowledges that due to his left knee disability and related pain the Veteran has had to limit his functioning; however, the level of severity and functional impairment shown are encompassed by the 30 percent rating assigned. Accordingly, a rating in excess of the 30 percent schedular rating assigned under Code 5055 is not warranted at any time prior to April 28, 2014. From the April 28, 2014 date a VA treatment record to August 19, 2014 (the date of a subsequent left TKR procedure), the Board finds that the Veteran's post-TKR left knee disability was shown to have been manifested by chronic residuals of severe painful motion or weakness (warranting a 60 percent rating under Code 5055). The April 28, 2014 VA treatment record notes that the Veteran reported that he experienced left knee pain with activity, especially traversing stairs, and instability, which caused several falls. On examination, it was noted that he had an antalgic gait, and used a cane for support. Mild global laxity in varus and valgus was shown on full extension, mid-flexion, and 90 degrees of flexion. Although X-rays showed no signs of loosening, there was possible tibial wear, and although a left knee CT scan showed no obvious signs of loosening at the metal/bone interface, the provider indicated there was concern for poly wear in the TKR components. June 2014 and August 2014 treatment records continued to show severe painful motion and weakness (reflected by reduced capacity for activity), and he underwent a second left knee TKR procedure (with a total rating assigned from the examination date). The disability picture presented from April 28, 2014 to August 19, 2014, of TKR residuals of severe painful motion or weakness or approximating such severity, warrant a 60 percent rating. Notably, in April 2014 he reported several falls due to left knee instability, and in June 2014 he reported moderate to severe left knee pain. Accordingly, a 60 percent rating for the Veteran's left TKR under Code 5055, is warranted from April 28, 2014 to August 19, 2014. From October 1, 2015, the Veteran's post-TKR left knee disability has been rated 30 percent (the minimum post-TKR rating) under Code 5055 for intermediate degrees of residual weakness, pain, or limitation of motion. The Board finds that at no time from October 1, 2015, is the Veteran's post-TKR left knee disability shown to have been manifested by chronic residuals of severe painful motion or weakness (so as to warrant a 60 percent rating under Code 5055) or by ankylosis, limitation of extension at more than 20 degrees, or malunion or nonunion of tibia and fibula (so as to warrant an intermediate rating under Codes 5256, 5261, or 5262. On August 2017 VA examination, left knee ROM testing showed flexion to 100 degrees and extension to 0 degrees, and it was noted that the ROM contributed to functional loss which consisted of less motion. However, muscle strength testing and joint stability testing were normal, and there was no atrophy or ankylosis ( and the examiner opined that the total knee replacement residuals consisted of intermediate degrees of residual weakness, pain, or limitation of motion). On December 2019 VA examination, the Veteran related that he believed his left leg "gave out" on him around Thanksgiving 2019, resulting in a fall down a flight of stairs and a head contusion. Subsequently evaluation in December 2019 for dizziness and balance issues attributed them to labyrinthitis. He reported he did not have o increased knee pain with walking, but used a walker to avoid another fall. ROM testing showed left knee flexion to 100 degrees and extension to 0 degrees, and it was noted that the ROM did not contribute to functional loss, and pain was noted on examination that did not result in functional loss. Also, there was no ankylosis; stability testing was normal; and the examiner further opined that the Veteran had a left knee disability of mild to moderate severity. On April 21, 2021 VA examination, it was noted that the Veteran's left knee disability caused interference with standing and sitting, disturbance of locomotion, less movement than normal, weakened movement, and instability of station. However, muscle atrophy, ankylosis, recurrent subluxation, and instability were not shown, and stability testing was normal. The Veteran did not have tibial or fibular impairment, and the provider indicated that the Veteran's TKR residuals were intermediate degrees of residual weakness, pain, or limitation of motion. The Board notes that in December 2020, the Veteran submitted a left knee DBQ, and the provider (who did not review the claims file to include any VA or private treatment records) noted that left knee ROM testing showed flexion to 65 degrees and extension to 0 degrees (after repetitive testing) and was painful on active, passive and/or repetitive motion testing and in weight-bearing or non-weight-bearing that contributed to functional loss or loss of ROM, however the severity of the left knee pain on the above testing, was not discussed. The Board acknowledges that due to his left knee disability and related pain the Veteran has had to limit his functioning; however, the level of severity and functional impairment shown are encompassed by the 30 percent rating assigned. Accordingly, a rating in excess of the 30 percent schedular rating assigned under Code 5055 is not warranted at any time from October 1, 2015. 2. Entitlement to a TDIU rating prior to October 16, 2020 (to include on an extraschedular basis prior to August 1, 2011) is denied. A TDIU rating may be assigned, where the schedular rating is less than total, when a Veteran is unable to maintain a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). At the outset, it is noteworthy that disability ratings represent, as far as can practicably be determined, the average [emphasis added] impairment in earning capacity resulting from the service-connected disabilities in civil occupations. See 38 C.F.R. § 4.1. In other words, occupational impairment with respect to a specific type of employment is not dispositive; and if a Veteran is precluded by service-connected disability or disabilities from participating in a specific type of employment in which the Veteran has primary experience, but remains capable of maintaining other regular substantially gainful employment consistent with education and occupational experience, such Veteran is not deemed unemployable. The central inquiry in a TDIU claim 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but age and impairment caused by nonservice-connected disabilities are not factors for consideration. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends (see his June 2008 TDIU application and lay statements) that he is (and has been) unable to maintain substantially gainful employment due to his service-connected disabilities. He reported that he last worked in 1996 and was receiving Social Security disability payments. At the time of his June 2008 TDIU application, his only service-connected disability was a left knee TKR, rated 30 percent. Subsequently, however, a September 2014 rating decision increased the rating for a left knee TKR disability to 100 percent, effective August 19, 2014, and assigned a 30 percent rating from October 1, 2015, and granted service connection for a right wrist disability at 0 percent, effective April 30, 2014. A November 2014 rating decision increased the rating for a right wrist disability to 10 percent, effective April 30, 2014, and an April 2018 Decision Review Officer (DRO) decision granted service connection for depressive disorder at 30 percent, effective October 24, 2017. Then, a January 2021 rating decision increased the rating for depressive disorder to 70 percent, effective September 28, 2020, and a July 2021 rating decision granted service connection for a left knee scar rated 0 percent, effective September 28, 2020. Finally, an August 2021 rating decision granted service connection for right hip replacement rated 100 percent, effective February 8, 2011, assigned a 30 percent rating from August 1, 2011, and increased the rating to 70 percent, from October 16, 2020; granted service connection for lumbosacral strain rated 10 percent, effective March 31, 2009, and 40 percent from April 21, 2021; granted service connection for left and right lower extremity sciatic radiculopathy rated 20 percent, each, effective April 21, 2021; and granted service connection for right hip degenerative arthritis rated 10 percent, effective March 31, 2009 to February 8, 2011; granted service connection for right hip limitation of flexion rated 0 percent, effective March 31, 2009 to February 8, 2011; and granted service connection for right hip scar rated 0 percent, effective February 8, 2011. AS the combined schedular rating is 100 percent from October 16, 2020, the Board has to determine whether a TDIU rating is warranted prior to that date. Entitlement to a TDIU rating from February 8, 2011 to October 16, 2020, is not shown. From February 8, 2011 to October 16, 2020, the Veteran's service-connected disabilities of right hip replacement (rated 100 percent from February 8, 2011, 30 percent from August 1, 2011, and 70 percent from October 16, 2020); left knee TKR (30 percent from September 1, 2001, 60 percent from April 28, 2014 to August 19, 2014 (granted in this decision), 100 percent from August 19, 2014, and 30 percent from October 1, 2015); depressive disorder (30 percent from October 24, 2017, and 70 percent from September 28, 2020); lumbar strain (10 percent from March 31, 2009); right wrist (10 percent from April 30, 2014); right hip scar (0 percent from February 8, 2011); and post-surgery scar (0 percent from September 28, 2020), were rated (60 percent, combined, from August 1, 2011, 60 percent, combined, from October 1, 2015, 80 percent, combined, from October 24, 2017, and 90 percent, combined, from September 28, 2020). The Board notes that form February 8, 2011, the Veteran's right hip replacement was assigned a temporary 100 percent rating, and the 60 percent combined ratings assigned from August 1, 2011 and October 1, 2015 were from a common etiology, therefore, from February 8, 2011 to October 16, 2020, the 38 C.F.R. § 4.16(a) schedular criteria for a TDIU rating were met. A May 2012 VA treatment record notes that the Veteran had no difficulty walking, experienced normal sleep, and reported no problems with ADLs. An August 2013 VA treatment record notes that he reported that he worked under cars in his garage and got a lot of debris in his eyes. An August 2014 (post second left knee TKR procedure) VA treatment record notes that he was moderately independent, used a cane, could drive, and could manage his own finances, and repaired cars as a hobby. He related that he was in charge of most of cooking and cleaning in his home because his wife worked full time and that he liked to walk his dog. On October 2014 VA wrist examination, the examiner opined that there was no additional increased pain, weakness, fatigability, or incoordination that would significantly limit functional ability during flare-ups, or when the right wrist joint was used repeatedly over a period of time, and the right wrist would not impact his ability to work. A September 2017 VA treatment record notes that the Veteran reported that he had recently been in Texas for 3 weeks with a demolition/cleanup firm helping with Hurricane Harvey cleanup. He worked 12-hour days at very heavy labor, and was very frustrated by the experience because his firm had poor logistics and coordination. He reported right shoulder pain, chronic low back pain, left buttock pain, and lateral hip pain. He felt that he may have overworked himself. On October 2017 VA mental health examination, the Veteran reported that he had mild symptoms of depression, he remained fully independent with all activities of daily living (driving, maintaining his home, self-care skills) and worked part-time on the side doing auto repair jobs for income. A November 2017 VA treatment record notes that the Veteran reported that he liked to work on cars, watch boxing, work in his yard, work with his hands, and volunteer. An April 2018 VA treatment record notes that the Veteran indicated that he wanted right shoulder surgery but intended to delay the surgery until after his wife had recovered from her procedure and after he completed some concrete work jobs in the next few months. He related that he would be working the machines and that no heavy labor was anticipated. An October 2018 VA treatment record notes that the Veteran reported that he was doing well with no major issues, and that he had been working hard in construction recently. He related that he felt his shoulder was improving but was not quite 100 percent, which affected him in the workplace, given the very strenuous physical labor demands. The provider indicated that the Veteran was a very active person who had no limiting cardiovascular or pulmonary symptoms. A November 2018 VA treatment record notes that the Veteran reported that he continued to do concrete and brick work and usually lifted up to 80 pounds at a time. He related that he had a recent shoulder injury helping with Hurricane Harvey recovery and sought occupational therapy so he could get back to his concrete and brick work. A January 2019 VA occupational therapy record notes that the Veteran underwent a recent right shoulder arthroscopy and rotator cuff repair. He reported that he was ready to "get going" because he had to get ready for these jobs that he had coming up soon, so he had to get back to work. On examination, it was noted he was progressing well with pain and mobility, and that he was on target with healing, ROM and strengthening. At the August 2019 hearing, the Veteran testified that he had received SSA disability since 2000 and that his wrist would keep him from doing any type of manual work such as mechanic work because he could no longer hold a wrench. He also related that he had no experience with clerical work, such as typing. A January 2020 VA treatment record notes that the Veteran reported intermittent left knee pain and increased left knee soreness and stiffness following a lot of driving over the past few days. On examination, it was noted that he ambulates with mild antalgia, had fair to poor use of stairs, and rises from sitting without assistance. On January 2020 VA hip and back examinations, the examiner opined that, regarding the right hip and low back disabilities, the Veteran could have problems in an occupational setting performing work that involved strenuous physical labor such as heavy lifting. He can tolerate other forms of work that fall in the light duty to medium duty ranges of physical demand. An August 2020 VA treatment record notes that the Veteran reported that he was doing reasonably well, his left knee continued to bother him occasionally, and that diclofenac gel was helpful, but he found it difficult to remember to apply during the day when he was active or busy. He related that he was exposed to COVID on a job site about 3-4 weeks earlier and experienced short-lived fatigue and diarrhea, but felt that he was back to normal. The Veteran reported on his June 2008 TDIU application that he completed two years of college, and had not worked full-time since July 1996. Given the nature and severity of the left knee, right hip, and depression disabilities, it may reasonably be conceded that by virtue of his service-connected disabilities he was precluded from engaging in the more strenuous types of employment (that require prolonged standing or walking, heavy lifting or carrying, and full, or not significantly limited, use of the lower extremities) at certain times (the record shows that he actually worked in various types of employment, include some that appear to be at least to some extent of the physically demanding type, as reflected by his working hurricane relief in 2017 and in construction in 2018) from February 8, 2011 to October 16, 2020. What remains for consideration therefore is whether from February 8, 2011 to October 16, 2020, by virtue of his service-connected disabilities, the Veteran was also precluded from participating in the less strenuous forms of employment (include light physical labor) that can be done seated, or with a mix of seated and some standing or walking. On October 2014 wrist examination, the examiner opined that his right wrist disability would not impact his ability to work, and on January 2020 VA hip and back examinations, the examiners opined that he could tolerate other forms of work that fall in the light duty to medium duty ranges of physical demand. Regarding his depression, on October 2017 examination, he Veteran reported that he had mild symptoms, remained fully independent with all activities of daily living (driving, maintaining his home, self-care skills) and he worked part-time on the side doing auto repair jobs for income. Although VA and private treatment records from February 8, 2011 to October 16, 2020 note that he reported various difficulties with his left knee (to include requiring a second left knee TKR in August 2014), right hip, low back, and depression disabilities, he reported numerous instances where he not only engaged in work, but that such work was often physically strenuous. In June 2008 he reported working 12-hour days helping with a Katrina clean-up operation, in August 2013 and August 2014 he reported that he was able to manage all household tasks and repaired cars as a hobby, and from September 2017 to August 2020, he reported working at various jobs which involved heavy lifting (up to 80 pounds) and operating machines. The competent and credible evidence of record from February 8, 2011 to October 16, 2020, shows that during such period, due to his service-connected disabilities, the Veteran was only precluded from working in physically active occupations at certain times. It does not show an inability to engage/earn a living wage in regular employment that does not require strenuous physical activity, heavy lifting, or prolonged standing or walking, but could be done with some accommodations for his limitations. Notably, he has been able to engage in employment that required heavy labor at multiple points throughout this period, and has continued to drive and engage in a hobby from (working on cars) from which he has earned income. The preponderance of the evidence is against a finding that his service-connected disabilities, alone, have prevented him, from participating in less strenuous, regular substantially gainful employment consistent with his education/occupational experience (which may include supervisory work in construction and operating machinery). Therefore, the preponderance of the evidence is against this claim, and a TDIU rating from February 8, 2011 to October 16, 2020, is not warranted. Entitlement to a TDIU rating, to include on an extraschedular basis, prior to February 8, 2011, is likewise not shown. Prior to February 8, 2011, the Veteran's service-connected disabilities were left knee TKR (rated 30 percent), lumbosacral strain (rated 10 percent from March 31, 2009), and right hip (rated 10 percent from March 31, 2009). Thus, prior to February 8, 2011, the 38 C.F.R. § 4.16(a) schedular criteria for a TDIU rating were not met (except for the 100 percent rating granted for left knee TKR recovery from June 27, 2000 to September 1, 2001). Accordingly, the analysis turns to whether the service-connected disabilities nonetheless rendered him unemployable, requiring referral to the VA Compensation Service Director for consideration of an extraschedular TDIU rating. See 38 C.F.R.§ 4.16 (b). A February 1997 private medical statement notes that the Veteran reported left knee pain, swelling, and the sensation of the knee giving way. He related that the pain was medially and laterally and that he wore a brace. Left knee ROM testing showed flexion to 100 degrees and extension to 0 degrees. The assessment was ACL deficient left knee with degenerative joint disease. The provider recommended permanent restrictions limiting to lifting more than 50 pounds, occasional overhead lifting above 65 pounds, carrying above 50 pounds, and pushing more than 70 pounds. The Veteran was also restricted to occasional partial squatting and standing time for up to an hour. On February 1999 VA examination, left knee ROM testing showed flexion to 95 degrees, and extension to 5 degrees. The collateral and posterior cruciate ligaments were normal, and the McMurry's test was normal. A July 2000 VA treatment record notes that the Veteran had a total knee replacement in June 2000 and would most likely not be able to return to a job that required heavy labor. He would require light duty or a sedentary job. A June 2008 VA treatment record notes that the Veteran reported left knee pain that worsened with walking and that he had been working 12-hour days in New Orleans helping with clean-up after Katrina. On examination, it was noted that he had a slight limp, there was minimal left knee edema, there was no instability, and he did not use an assistive device. The record does not show that due to his service-connected left knee TKR, right hip, and lumbosacral strain disabilities, the Veteran was unable to maintain substantially gainful employment consistent with his education and work experience, so as to warrant referral for consideration of an extra-schedular TDIU rating under 38 C.F.R. § 3.321(b); 4.16(b). Prior to, and after, his 2000 left knee TKR, examiners opined that he would at least be able to perform a job that was sedentary (could be performed seated) or that only required light labor, and in June 2008, he reported that he had engaged in heavy physical labor for an extended period. The preponderance of the evidence is against a finding that prior to February 8, 2011, his service-connected disabilities resulted in impairment that prevented him from maintaining regular substantially gainful employment. Therefore, referral for consideration of an extraschedular TDIU rating is not warranted. Considering the foregoing, a TDIU rating on an extraschedular basis was not warranted prior to February 8, 2011. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.