Citation Nr: 21066897 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 08-32 828 DATE: November 2, 2021 ORDER Entitlement to a rating of 10 percent from March 3, 2012 and a rating of 30 percent from April 9, 2021 for right knee osteoarthritis (limitation of extension) is granted. Entitlement to a rating of 10 percent prior to February 7, 2021 and a rating of 20 percent thereafter for right knee instability is granted. Entitlement to a rating of 10 percent from February 7, 2012 for a painful right knee scar associated with right knee osteoarthritis is granted. Entitlement to a total disability based on individual unemployability (TDIU) is denied. REFERRED In July and November 2020 statements, the Veteran contended that he is seeking a "permanent and total rating," rather than a TDIU. The Board finds that this issue has been raised by the record and is referred to the Agency of Original Jurisdiction for adjudication. FINDINGS OF FACT 1. The Veteran's right knee osteoarthritis (limitation of extension) is manifest by extension limited to 10 degrees from March 3, 2012, and extension limited to 20 degrees from April 9, 2021. 2. The Veteran's right knee instability is manifest by slight lateral instability prior to February 7, 2021, and diagnosis of a condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a knee brace, thereafter. 3. From February 7, 2012, the Veteran has one scar of the right knee that is painful. 4. The preponderance of the evidence does not show that the Veteran is unable to secure and follow substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 10 percent from March 3, 2012 and a rating of 30 percent from April 9, 2021 for right knee osteoarthritis (limitation of extension) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 2. The criteria for entitlement to a rating of 10 percent prior to February 7, 2021 and a rating of 20 percent thereafter for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. The criteria for entitlement to a rating of 10 percent from February 7, 2012 for a painful right knee scar associated with right knee osteoarthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from September 1997 to February 1998, from November 1999 to November 2002, and from May 2003 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing in June 2013. A transcript of the proceeding has been associated with the claims file. The Veteran's claims have a lengthy procedural history before the Board. Most recently, the Veteran's claim was remanded by the Board in a March 2021 decision for a contemporaneous VA examination. A VA examination was scheduled and completed in April 2021. Therefore, the Board finds that the RO has substantially complied with the March 2021 Board remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, in a July 2021 rating decision, the RO increased the Veteran's right knee osteoarthritis evaluation to 30 percent effective April 9, 2021 under Diagnostic Code 5261, awarded the Veteran a separate compensable evaluation of 10 percent for right knee instability effective April 9, 2021 under Diagnostic Code 5257, and awarded a separate compensable evaluation of 10 percent for a painful right knee scar effective April 9, 2021 under Diagnostic 7804. As the RO's actions do not constitute a full grant of the benefit sought and the Veteran has not expressed satisfaction with the increased ratings, the issue remains on appeal. Ab v. Brown, 6 Vet. App. 35, 39 (1993). The Board notes that the assignment of a particular diagnostic code to evaluate a disability is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Veteran's right knee osteoarthritis had been evaluated under Diagnostic Code 5257 for instability until April 9, 2021. In the July 2021 rating decision, the RO rated the right knee osteoarthritis under Diagnostic Code 5261 for limitation of extension and then awarded a separate rating for instability, effective April 9, 20201. The Board finds that it is "more appropriate" to continue the 10 percent rating for right knee instability under Diagnostic Code 5257 and increase it to 20 percent effective February 7, 2021, and award a separate evaluation of 10 percent for right knee limitation of extension from March 3, 2012 and increase it to 30 percent effective April 9, 2021. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The changes made herein will be discussed in further detail below. The Board also notes that relevant VA examinations and VA treatment records were added after the most recent supplemental statement of the case in July 2021. However, in July 2021, the examiner completed a Waiver of AOJ Consideration of Additional Evidence and indicated that he did not have an objection to the Board considering any new evidence during the adjudication of his appeal. Consequently, the Board will consider the applicable evidence in the present appeal before the Board. Increased Ratings Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 1. Entitlement to a rating of 10 percent from March 3, 2012 and a rating of 30 percent from April 9, 2021 for right knee osteoarthritis (limitation of extension) 2. Entitlement to a rating of in excess of 10 percent prior to April 9, 2021 and rating in excess of 20 percent thereafter for right knee instability 3. Entitlement to a rating of 10 percent from February 7, 2012 for a painful right knee scar associated with right knee osteoarthritis The Veteran contends that his service-connected right knee disability is more severe than as reflected in his current ratings. The Veteran filed his claim for increased evaluation on December 12, 2007, the Board has considered the evidence of record since December 12, 2006 in conjunction with this decision. See 38 C.F.R. § 3.400 (o). The evidence relevant to the severity of the Veteran's right knee disability includes VA examinations, VA treatment records, and lay statements offered by the Veteran. In January 2008 the Veteran was afforded a VA examination for his right knee. The Veteran complained of constant pain, swelling, popping, and his knee giving out from time to time. He stated that he takes naproxen to help with pain and swelling. He has flare-ups 3 times a week, lasting about an hour, where his pain is 10/10 and he has to sit down and rub his knee. The examiner noted that the Veteran is able to work, wears a brace sometimes, and can walk a mile. Upon physical examination, there was no effusion, warmth, or erythema. His knee was tender with crepitus. His range of motion was from 0 to 100 with pain throughout, and did not change with repetition. An x-ray revealed arthritis. The examiner opined that it is conceivable that pain could further limit function, but he cannot express this in terms of additional limitation of motion. He was afforded another VA examination in July 2009. During the examination, the Veteran complained of excruciating knee pain and flare-ups that occur every day if he is on his leg for long periods of time or walks any distance. The Veteran stated that his knee affects his daily activities by limiting his walking and his ability to do his job as a mail carrier. Upon physical examination, his knee was nontender to palpation over the scar, but tender in other areas of the knee joint. His range of motion was from 0 to 110 with pain. After repetitive motion, neither pain nor his range of motion changed. The examiner noted that the Veteran's knee was stable. The examiner opined that the Veteran certainly could have worsening pain and loss of motion with increasing activity, but he cannot address this in terms of range of motion. During a November 2010 VA examination, the Veteran contended that his knee pain is 9/10 and he wears a brace. The examiner noted that the Veteran can walk up to 15 minutes or 1 to 2 blocks. He reported daily flare-ups with prolonged walking and that his knee affects his ability to work. Upon physical examination, the examiner noted the Veteran's well-healed incision. His range of motion was from 0 to 80 degrees with pain. There was no change with his range of motion after repetition. The examiner found that the Veteran's knee was stable without effusion. The examiner opined that it is reasonable that the Veteran could have increased pain and decreased range of motion with increased activity, but he cannot express this in medical terms. VA treatment records from November 2011 include complaints of constant and severe knee pain that interferes with his activity, sleep, and concentration. In January 2012, the Veteran requested that his Family and Medical Leave Act (FMLA) papers be completed for his right knee disability, as he complained that he knees swell up and he has pain. The Veteran was prescribed knee braces in February 2012 for medial lateral instability. In a February 7, 2012 Report of General Information, the Veteran contended that his right knee scar is painful. He had a VA examination for his right knee scar in February 2012, and the examiner opined that the scar was not painful or unstable without further explanation. On March 3, 2012, the Veteran was afforded yet another VA examination for his right knee. The Veteran reported experiencing severe pain at work as he is on his feet all day. The Veteran reported flare-ups 5 to 7 times per week precipitated by increased activity. Upon examination, his right knee flexion was limited to 90 degrees and his extension ended at 10 degrees. The Veteran was able to perform repetitive use testing without additional loss of range of motion. Additional factors contributing to the Veteran's disability include less movement than normal, pain on movement, swelling, and tenderness on palpation. His joint stability was normal. The examiner noted that the Veteran uses a knee brace and opined that his knee condition impacts his ability to complete occupational tasks. Shortly thereafter, in April 2012, the Veteran underwent another VA examination for his knee. The Veteran reported flare-ups resulting in severe pain and swelling in the knee, and on occasion, his flare-ups cause him to sit down, and he is unable to work. Upon range of motion testing, his flexion was limited to 130 degrees and his extension ended at 0. There was evidence of pain on motion. The Veteran was able to complete repetitive use testing without additional loss of function. Additional factors contributing to his disability include less movement than normal, pain on movement, swelling, deformity, and pain on palpation. There was no evidence of instability. The examiner noted that the Veteran uses a knee brace. He opined that the Veteran's right knee disability impacts his ability to complete occupational tasks due to pain with walking and bending, and anterior knee pain. The Veteran testified before the Board in June 2013. He testified that his knee pain is at a 10 and he takes pain medication including ibuprofen and hydrocodone. He further stated that his right knee scar is "real sensitive and it hurts." The Veteran also stated that he wears a knee brace to keep his knee stable and it was prescribed to him by his doctor for instability. He also testified that he has daily flare-ups and experiencing knee swelling. The Veteran said that his knee does not affect his ability to work, but he is slow to get out of bed in the morning. He noted that he works as a custodian for the post office since 2009 and he has to do a lot of walking for his job. During the same Board hearing, the Veteran then stated that his knee sometimes interferes with his work and he has missed work because of his knee. He has to sit with his legs straight out or they will start to swell. The Veteran also testified that during his last VA examination, the examiner pushed his knee further than he would normally be able to function. A VA treatment note from June 2013 indicates that the Veteran's knee gives out and he experience two or more falls within the past 12 months. In April 2014, the Veteran underwent a VA examination where he denied instability, swelling, or flare-ups. His flexion was limited to 100 and his extension was normal without any objective evidence of pain. He was able to perform repetitive use testing without additional loss of function. Additional factors contributing to his disability include less movement than normal, pain on movement, interference with sitting, standing or weight bearing, and pain on palpation. The examiner found no evidence of instability, but noted the Veteran's use of a brace for knee pain. VA treatment records from May 2014 include complaints of knee pain with evidence of tenderness and mild effusion. In June 2014, the Veteran's right knee range of motion was from 0 to 110 degrees with evidence of hypersensitivity over the scar. The Veteran was again provided with knee braces for support and stabilization of the knee during stance and ambulation. In February 2015, the Veteran was afforded a VA examination for his knee scar. The Veteran reported that his scar is painful and sensitive. However, the examiner stated that there was no objective evidence of pain or tenderness during the examination. In December 2015, the Veteran underwent another right knee VA examination. The Veteran reported chronic knee pain worsening over the last few years. He denied flare-ups, but reported functional impairment as he is unable to run and has pain when bending over. Upon range of motion testing, his flexion was limited 110 and his extension was normal. Pain was noted on the examination as well as objective evidence of crepitus, localized tenderness, and mild tenderness over the scar. The Veteran was able to complete repetitive use testing without additional loss of range of motion. The examiner opined that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over time. There was no evidence of instability, but the examiner noted a history of recurrent effusion as the Veteran has swelling of the right knee after heavy activity. The examiner also noted that the Veteran uses a knee brace at work for support. He also opined that the Veteran's right knee disability impacts his ability to do job as he is unable to do running or heavy manual labor, but found that the Veteran is able to engage in a sedentary job or a job with walking with frequent breaks for sitting. Overall, the examiner opined that there was no evidence of worsening or increased loss of function related to the right knee, and his current condition is very similar to the 2012 VA examination. During an October 2018 VA examination, the Veteran denied flare-ups or functional impairment. Range of motion testing revealed full range of motion. He was able to perform observed repetitive use testing without additional loss of function or range of motion. The examiner opined that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over time or during flare-ups. There was no evidence of instability. VA treatment records from June 2019 through August 2019 include a physical therapy consultation for worsening knee pain, popping of the knee, and a giving out sensation. Range of motion testing revealed flexion limited to 80 degrees and extension ending at 10 degrees. The Veteran also reported delivering mail for the post office and stating that prolonged standing and walking worsened his symptoms such as pain, stiffness, and swelling. He also reported symptoms including popping, grinding, and giving out. In August 2019, the October 2018 VA examiner completed an addendum medical opinion. The examiner stated that the 2014 VA examination showed that pain started at 90 degrees of flexion, but the Veteran was able to have full range of motion. In addition, there were no signs of abnormal extension either during the 2014 VA examination. The examiner found that the Veteran has pain, but complete movement in the knee. Based on fact the 2014 examination was closer to his surgery, the examiner concluded that the 2014 examination was accurate. A November 2019 VA treatment record indicates that the Veteran presented his primary care provider with FMLA paperwork contending that he has to miss work due to his knee pain. In June 2020, a VA treatment record includes complaints of constant knee swelling which leads to the Veteran having to leave work. He reported that his knee swell after standing for long periods of time. A VA medical opinion was obtained in September 2020 regarding the right knee. The examiner noted the Veteran's full range of motion on the October 2018 and 2014 VA examinations and the fact that the Veteran works full time at the post office. The examiner also noted the June 2019 physical therapy evaluation where the Veteran's range of motion was from 10 to 80 degrees. The examiner opined that it is at least as likely as not that the Veteran's right knee extension would be from 80 to 10 degrees and his passive motion would be the same. In November 2020 correspondence from the Veteran, he contended that he experiences knee pain all the time and it takes him about 30 minutes to get out of bed in the morning and for his legs to start working. He further contended that he is a maintenance mechanic, and he has to stand and walk during his 8-hour shift. He stated that his right knee swells up every day and his knee is rubbing bone against bone. The Veteran was afforded a VA examination for his knee scar in April 2021, which the examiner noted as painful as it was tender and aching upon examination. The Veteran also had a VA examination for his right knee in April 2021. He reported his current symptoms as achiness and tenderness. He reported weekly flare-ups lasting 1 to 2 days that result in severe pain, tightness, feelings of unsteadiness, and giving out. The flare-ups are precipitated by walking, standing, or bending. The examiner described the functional impairment during flare-ups as moderate. The examiner also noted the Veteran's history of instability. Upon range of motion testing, the Veteran's flexion was limited to 105 degrees and his extension ended at 15 degrees with evidence of pain, crepitus, and tenderness. The Veteran was able to perform observed repetitive use testing without additional loss of function or range of motion. The examiner opined that pain, fatigability, weakness, and lack of endurance significantly limit functional ability after repeated use and during flare-ups. The Veteran's range of motion was estimated to be reduced to flexion limited to 75 degrees and extension limited to 20 degrees. Additional factors contributing the disability include swelling. The examiner opined that the Veteran has joint instability and an incomplete/partial ligament tear and patellar instability necessitating a prescription of a knee brace for ambulation. The examiner also opined that the Veteran's right knee condition impacts his ability to complete occupational tasks and he has lost 1 to 2 weeks of work in the last 12 months. In August 2021, the Veteran had another VA examination for his right knee scar, which the examiner found to not be painful. More recent VA treatment records from July and August 2021 include continued complaints for knee pain. It was noted that the Veteran wears knee sleeves and has a mild antalgic gait. Mild swelling, crepitus, and grinding were noted. The Veteran's range of motion was from 0 to 90 degrees. The Veteran again requested FMLA paperwork to be completed for his knee pain. The Veteran stated that he has to leave work sometimes or call in sick because of his flare-ups. His primary care provider would not complete the forms without specific dates. His treatment records also note that the Veteran works full time and drives an average of 100 miles per week. He is independent with his activities of daily living, completes lawn care, and takes the trash out. Right knee, limitation of extension The Veteran's right knee osteoarthritis (limitation of extension) is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that effective February 7, 2021, the VA amended the rating criteria for disabilities of the knee and leg; however, Diagnostic Code 5261 was unchanged. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). After careful consideration of the evidence of record, the Board finds that the preponderance of the evidence supports granting a 10 percent rating for limitation of extension from March 3, 2012 and a 30 percent rating from April 9, 2021. The evidence reveals that the Veteran's right knee first experienced limitation of extension on March 3, 2012 during a VA examination when the Veteran's extension was limited to 10 degrees. Thereafter, the Veteran's VA treatment records include a June 2019 physical therapy consultation where the Veteran's extension ended at 10 degrees. During the most recent April 2021 VA examination, the examiner opined that the Veteran's function and range of motion would be greatly reduced during a flare-up, estimated to end at 30 degrees. Prior to April 2021, the Board finds that the evidence does not support a rating greater than 10 percent for limitation of extension even when considering the Veteran's reports of additional functional loss due to pain and swelling. The evidence shows that the Veteran was able to continue working for the post office throughout the entirety of the appeal, only missing 1 to 2 weeks of work during a 12-month period. After April 2021, the Board finds that the evidence does not support a rating greater than 20 percent as the Veteran has continued working full time at the post office and is able to complete activities of daily living, mow the lawn, and take out the trash without incident per an August 2021 VA treatment record. Right knee instability The Veteran's right knee instability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. The rating criteria for evaluating knee instability under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). 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 that is more favorable to the Veteran will be applied. Under the old criteria for Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The amended Diagnostic Code 5257 criteria provide ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted for 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. A 20 percent rating is warranted for 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; or (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 maximum 30 percent rating is warranted for 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. For patellar instability, a 10 percent rating is warranted 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. A 20 percent rating is warranted 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 maximum 30 percent rating is warranted 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. After careful consideration of the evidence of record, the Board finds that the preponderance of the evidence supports a rating of 10 percent for right knee instability prior to February 7, 2021. During the January 2008 VA examination, the Veteran reported that his knee gives out. And his VA treatment records show that he was prescribed a knee brace specifically for medial lateral instability. The Veteran's VA examinations have indicated the Veteran's continued use of a knee brace for ambulation and pain. However, the Board finds that a 20 percent rating is not warranted, as the Veteran's instability has not been "moderate" or limited in scope of effect. Although the Veteran has reported that his knee has given out and he has been prescribed a brace for his knee instability, his VA examinations have been absent of any objective medical evidence of knee instability. Furthermore, in June 2013, the Veteran reported only 2 or more falls within the past 12 months related to his knee instability. The remainder of his VA treatment records do not include any other notations for falls related to knee instability. Additionally, the Veteran's lay statements have not included any indication that the Veteran's instability as resulted in any falls. Overall, the lay and medical evidence indicates that the Veteran's instability symptoms do not suggest the presence of symptoms more nearly approximating moderate lateral instability. Thus, the Board concludes that the Veteran's right knee instability warrants a 10 percent evaluation, but no higher. After February 7, 2021, the Board finds that the amended criteria is more advantageous for the Veteran and further finds that a 20 percent rating is warranted for patellar instability requiring the prescribed use of a knee brace. As previously noted, the Veteran was first prescribed a knee brace in February 2012 for instability. The record shows that the Veteran has continued to require a knee brace throughout the appeal for stabilization and ambulation. The Board finds February 7, 2021 is the earliest date that a 20 percent rating is possible under the amended diagnostic criteria. However, a rating in excess of 20 percent is not warranted, as neither the objective medical evidence nor lay evidence shows that Veteran has a complete ligament tear or recurrent instability after surgical repair. Right knee painful scar The Veteran's painful right knee scar is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7804, scar(s), unstable or painful. Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Additionally, scars that are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804 when applicable. Id. at Note 3. After careful consideration of the evidence of record, the Board finds that the Veteran first reported a painful right knee scar on February 7, 2012 when he submitted his claim. Thereafter, the Veteran continued to complain of a painful, tender, and sensitive scar. Objective medical evidence in June 2014, December 2015, and April 2021 supported the Veteran's contentions of a painful knee scar. After resolving all doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a 10 percent rating for a painful scar from February 7, 2012. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Board finds that a rating in excess of 10 percent is not warranted as the evidence does not support a finding that the Veteran has two or more scars that are painful or unstable. The Board acknowledges the Veteran's statements throughout the appeal regarding the severity of the Veteran's service-connected right knee disability. The Board finds that the Veteran's subjective statements regarding his knee pain and limitation of function are not reflected by the objective evidence of record including range of motion testing. Also, despite the Veteran's statements regarding the severity of his knee symptoms, he has maintained a full-time, physically demanding job throughout the appeal. Consequently, the Board affords more probative value to the objective medical evidence of record than his subjective statements, and further finds that the objective medical evidence is more reflective of the severity of his knees throughout the appeal. The Board also acknowledges the Veteran's statements pertaining to the adequacy of the VA examinations. In May 2008, December 2011, June 2013, July 2020, and November 2020 statements, the Veteran contended that his VA examinations were inadequate in January 2008, November 2010, April 2014, and October 2018 primarily for not accurately considering his lay statements. The Board has considered the Veteran's contentions regarding the adequacy of the VA examinations and notes that the examinations do not comply with the recent findings from Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veterans themselves when a flare-up is not observable at the time of examination. 29 Vet. App. at 32. However, the Board finds that a new examination or retrospective medical opinion to correct the error would not result in increased or additional ratings. As previously discussed, the Veteran's VA treatment records show consistent complaints of right knee instability and extension ended at 10 degrees, but do not indicate that the Veteran's knee instability or limitation of extension was so severe as to warrant higher ratings. Furthermore, as previously noted, the Veteran has maintained a full-time job throughout the appeal where he has to stand and walk on a regular basis. Therefore, the Board finds that a remand for a new examination is unnecessary and it would not benefit the Veteran. See Robertson v. Shinseki, 26 Vet. App. 169, 181 (2013), (concluding that remand was not warranted to remedy an error where "such a remand would not tangibly benefit" the appellant). 4. Entitlement to a TDIU The Veteran contends that he is unable to obtain or follow substantially gainful employment due to his service-connected disabilities, specifically his right knee and his posttraumatic stress disorder (PTSD). A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims found that 38 C.F.R. § 4.16 (b) has two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. From April 27, 2016, the Veteran has established service connection for PTSD rated as 50 percent disabling, tension headaches rated as 30 percent disabling, bilateral pes planus rated as 30 percent disabling, right knee instability rated as 10 percent disabling, right knee limitation of extension rated as 10 percent disabling, hypertension rated as 10 percent disabling, left knee rated as 10 percent disabling, tinnitus rated as 10 percent disabling, gastroesophageal reflux disease rated as 10 percent disabling, and right knee scar rated as 10 percent disabling; and left middle finger fracture, left ear hearing loss, and right knee scar rated as noncompensable. The Veteran's combined rating for compensation purposes was 90 percent effective. 38 C.F.R. §§ 4.25, 4.26. Therefore, the Veteran met the schedular rating criteria for TDIU beginning April 27, 2016. 38 C.F.R. § 4.16 (a). Prior to April 27, 2016, the Veteran did not meet the schedular rating criteria for a TDIU. However, for Veteran's who are unable to secure and follow substantially gainful occupation by reason of their service-connected disabilities shall be rated totally disabled, and their claims should be submitted to the Director of Compensation Services for extraschedular consideration if they do not meet the percentage requirements. 38 C.F.R. § 4.16 (b). Thus, the remaining inquiry before the Board is whether the Veteran is unable to secure or follow substantially gainful occupation due solely to his service-connected disabilities. As previously mentioned, the Veteran has maintained a full-time position at the post office throughout the entirety of the appeal. In the Veteran's October 2011 Application for Increased Compensation Based on Unemployability, the Veteran indicated that the has been working at the post office since November 2007 working 40 hours per week earning at most, $3,200 per month. The Veteran's VA treatment records indicate that he has missed some days due to his knee pain, even requesting FMLA paperwork to be completed for his knee. However, the evidence does not support a finding that the Veteran is precluded from his employment due to his service-connected disabilities. The evidence indicates that the Veteran is able to drive, stand, walk, and sit for at least 40 hours a week and complete the tasks required of his employment despite his service-connected disabilities. Additionally, during the June 2013 Board hearing, the Veteran initially testified that his knee does not interfere with his employment, and then during the same hearing, he stated that he sometimes misses work due to his knee. Moreover, in July 2020 and November 2020 correspondence, the Veteran stated that he did not want a TDIU, but wanted to be rated as "permanent and total." Based on the foregoing, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected disabilities render him unemployable. Furthermore, as the Veteran is employed full-time at the post office and earns about $3,200 per month, he does not meet the economic component required under Ray. 31 Vet. App. 58 (2019). According to the Department of Commerce, the poverty threshold for an individual under 65 years old in 2011 was $11,702. https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. As the Veteran earned $3,200 per month in 2011, he earned well over the poverty threshold, indicating that the Veteran has not been marginally employed throughout the pendency of the appeal. Therefore, the Board finds that the Veteran is not precluded from securing and maintaining substantially gainful employment due to his service-connected disabilities. Accordingly, entitlement to a TDIU from April 27, 2016, and referral to the Director of Compensation Services prior to April 27, 2016 is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340 3.341, 4.3, 4.16. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, Associate 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.