Citation Nr: 21070465 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-31 240A DATE: November 24, 2021 ORDER Entitlement to an increased evaluation of 30 percent for instability of the left knee is granted. Entitlement to an increased evaluation in excess of 10 percent for degenerative arthritis of the left knee is denied. Entitlement to an increased evaluation in excess of 10 percent for status post left medial meniscectomy is denied. Entitlement to an increased rating for a left knee disability on an extraschedular basis is denied. Entitlement to service connection for low back condition, to include as secondary to service-connected left knee disability is denied. Entitlement to a total rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's instability of the left knee is manifested by severe lateral instability. 2. The Veteran's left knee disability manifested with painful and decreased motion with use, flexion to 85 degrees, extension to 5 degrees, and no ankylosis. 3. The Veteran's status post left medial meniscectomy is rated as 10 percent disabling, which is the maximum schedular rating permitted for symptomatic removal of semilunar cartilage. 4. The Veteran's left knee disability does not present such an exceptional or unusual disability picture that the available schedular evaluations are inadequate. 5. The Veteran's low back disability is not secondary to service-connected left knee disability, and is not otherwise related to an in-service injury or disease. 6. The Veteran's service-connected disabilities did not meet the requisite schedular percentages for entitlement to a TDIU; the evidence of record does not demonstrate the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased evaluation of 30 percent for instability of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for entitlement to an increased evaluation in excess of 10 percent for degenerative arthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.71a, Diagnostic Code 5003. 3. The criteria for entitlement to an increased evaluation in excess of 10 percent for status post left medial meniscectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259. 4. The criteria for an increased rating for a left knee disability on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321 (b). 5. The criteria for entitlement to service connection for low back condition, to include as secondary to service-connected left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for entitlement to a total rating based upon individual unemployability (TDIU) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in December 2017. In April 2018, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A Veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. 1. Entitlement to an increased evaluation in excess of 20 percent for instability of the left knee The Veteran contends that he is entitled to a higher rating because he suffers from daily pain and instability of his knee. The Veteran's instability of the left knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under 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 Board finds that the evidence shows a rating of 30 percent for instability of the left knee is warranted. The Board has carefully considered the Veteran's reports about instability. English, 30 Vet. App. 347, 352-53. Overall, the lay and medical evidence indicates that the instability symptoms suggest the presence of symptoms more nearly approximating severe severity. The Veteran relates that he has no stability in his left knee. See May 2012 Statement in Support of Claim. A January 2013 VA treatment note reflects the Veteran experiences chronic left knee pain and instability. The Veteran was afforded a VA examination in July 2013. The Veteran's anterior instability was 2+ and his posterior instability was normal. The Veteran constantly uses a brace and cane to support his left knee. In his August 2013 NOD, the Veteran stated he cannot walk without assistance of his cane. A March 2017 VA treatment record notes instability of the knee. The Veteran walks and arises with slight difficulty. The Veteran stated that his knee slips out of joint more often including when he lifts anything, or if he turns the wrong way. See Transcript of December 2017 Board Hearing. His knee swells when it pops out of the socket for a day or two. Id. This occurs approximately three times a month. Id. The Veteran stated he fell down due to his knee disability. Id. The Veteran has worn a brace for the past four years, and uses a cane prescribed to him to keep his knee stable when he walks. A January 2018 VA treatment note shows anterior/posterior instability. The Veteran was afforded a VA examination in July 2019. The Veteran reported pain, instability, and reduced range of motion. The examiner found the Veteran has moderate recurrent subluxation. His anterior joint instability is 2+. The examiner noted the Veteran uses a brace occasionally and his cane constantly. The evidence overall shows that he has severe instability of his knee. The Veteran uses a cane and brace constantly to support his left knee instability. He has fallen and experiences daily pain. His knee snaps out of joint and swells after popping out of the socket approximately three times a month. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Board has considered other potentially applicable Diagnostic Codes relating to the left knee. The record does not demonstrate evidence of ankylosis (Diagnostic Code 5256), semilunar cartilage, dislocation (Diagnostic Codes 5258); impairment of the tibia and fibula (Diagnostic Code 5262); or genu recurvatum (Diagnostic Code 5263). The Veteran is currently service connected for left knee arthritis under DC 5003 and status post left medial meniscectomy under Diagnostic Code 5259. A discussion of increased ratings under those codes is below. In conclusion, the Board finds that the evidence warrants a rating of 30 percent for instability of the left knee. 2. Entitlement to an increased evaluation in excess of 10 percent for degenerative arthritis of the left knee The Veteran contends he is entitled to a higher rating because he suffers daily pain and limited range of motion due to instability of his knee. Diagnostic Code 5003 provides the rating criteria for degenerative arthritis. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code for the specific joint involved-in this case the right knee. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id. Diagnostic Codes 5256 through 5263 are applicable for knee and leg disabilities. 38 C.F.R. § 4.71a. In this case, the Veteran is service connected under DCs 5257 and 5259 and increased ratings under those diagnostic codes are discussed separately. Diagnostic Code 5260 provides ratings based upon the limitation of flexion in the leg. A noncompensable rating is assigned when flexion is limited to 60 degrees. A 10 percent rating is assigned when flexion is limited to 45 degrees. A 20 percent rating is assigned when flexion is limited to 30 degrees. A 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.6. Diagnostic Code 5261 provides ratings based upon the limitation of extension in the leg. A noncompensable rating is assigned when extension is limited to 5 degrees. A 10 percent rating is assigned when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is assigned when extension is limited to 20 degrees. A 40 percent rating is assigned when extension is limited to 30 degrees. A 50 percent rating is assigned when extension is limited to 45 degrees. Id. The Board finds that the preponderance of the evidence does not warrant a rating in excess of 10 percent for degenerative arthritis of the left knee. A January 2013 VA treatment record reflects the Veteran left knee had no deformity, no atrophy, and limited flexion. VA treatment records show complaint of pain in the left knee. Upon VA examination in July 2013, the Veteran's left knee initial range of motion flexion was to 100 degrees with painful motion at 0 degrees, extension was to 0 degrees. Repetitive use testing range of motion was the same as the initial range of motion testing. Additional functional loss and impairment includes less movement than normal, weakened movement, pain on movement, and instability of station. In the Veteran's August 2013 NOD, he stated he cannot walk without a cane. The Veteran relates that he can extend his leg all the way out, but when he bends it back it locks up and will not go. It only goes halfway and is painful. A January 2018 VA treatment record notes the Veteran has pain with full flexion and no swelling noted. At the July 2019 VA examination, the Veteran reported constant pain, instability, and reduced range of motion. Initial range of motion for flexion was to 90 degrees and extension was to 0 degrees with pain noted on examination, causing functional loss. There was evidence of palpatory pain around the joint of moderate severity. The Veteran performed repetitive use testing with no additional loss of range of motion. After repeated use over time and during flare-ups, the Veteran's range of motion was flexion to 85 degrees, extension to 5 degrees. Additional factors contributing to limitation of motion included instability of station, disturbance of locomotion, interference with standing. The Veteran does not have ankylosis. The Board finds that a rating of 10 percent is warranted based upon painful and limited motion for the left knee. The Veteran has a diagnosis of arthritis of the left knee confirmed by radiographic examination, as documented in the July 2013 VA examination report. The findings for extension and flexion from the evidence of record fail to meet the criteria for a compensable evaluation based on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The Veteran stated he has experienced painful and limited motion at the VA examinations and in treatment records. However, the Veteran's flexion is not limited to 30 degrees, and extension is not limited to 15 degrees to warrant a 20 percent rating. The competent medical evidence offering detailed findings pertinent to the criteria for evaluation knee disabilities is the most probative evidence for evaluating the functional impact of the Veteran's left knee disability in this case. While his statements with regard to the matters he is competent to address have been considered, the Board has weighed this against the unbiased, competent medical evidence which revealed flexion limited to at most 85 degrees, and extension limited at most to 5 degrees. To the extent the Veteran experienced left knee pain, he is compensated for that functional impact by the assigned 10 percent evaluation. As noted above, the Board has considered other potentially applicable Diagnostic Codes relating to the left knee. The record does not demonstrate evidence of ankylosis (Diagnostic Code 5256), semilunar cartilage, dislocation (Diagnostic Codes 5258); impairment of the tibia and fibula (Diagnostic Code 5262); or genu recurvatum (Diagnostic Code 5263). Therefore, the Board finds that a rating in excess of 10 percent for degenerative arthritis of the left knee is not warranted. 3. Entitlement to an increased evaluation in excess of 10 percent for status post left medial meniscectomy The Veteran contends that he is entitled to a higher rating because he experiences pain and difficulty walking on his left knee. The Veteran's status post left medial meniscectomy is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. As the Veteran is in receipt of the highest schedular rating for dislocation of symptomatic removal of semilunar cartilage, there is no basis to award a higher evaluation. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In this case, the Veteran is already service connected and assigned ratings under DC 5257 and 5003. As discussed above, ratings under other ratings are not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for status post left medial meniscectomy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to an increased rating for a left knee disability on an extraschedular basis The AOJ considered referral of this issue to the Director of Compensation Service for a possible extra-schedular evaluation. Therefore, the Board will consider whether extraschedular consideration is warranted for the Veteran's service-connected left knee disability. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director of the Compensation Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Here, the Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected left knee disability with the established criteria found in the Rating Schedule and found that his symptomatology is fully addressed by the rating criteria under which such disability is rated. There are no additional symptoms that are not addressed by the Rating Schedule or that have not been considered by the Board in assigning the appropriate rating. The diagnostic codes in the rating schedule corresponding to disabilities of the knee provide disability ratings on the basis of limitation of motion and ankylosis. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased, or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. The Veteran's statements regarding his physical restrictions pertain to functional limitations that are contemplated by the governing diagnostic code criteria and corresponding regulations. The inability to accomplish a task, such as those described above is not a "symptom" set forth in any portion of the Rating Schedule, yet it is a result of the same symptoms of pain, painful motion, and limitation of motion that are set forth. Thus, it is a result contemplated by the rating criteria as it is based on the same symptomatology. The Veteran has not described any unusual or exceptional symptoms associated with his left knee or described any functional impairment that affects him in an unusual or exceptional manner. The Veteran's use of assistive devices such as a knee support and cane are due to symptoms related to impairment of range of motion and thus is contemplated by the schedular rating criteria. Cf. Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018) ("All the symptoms for which a cane or walker could serve as a proxy are contemplated by § 4.120 as impairments of motor and sensory function. In other words, the symptoms of sciatica that cause the appellant to use assistive devices such as a cane or walker are contemplated by the schedular rating criteria and therefore do not satisfy the first part of Thun's first element."). As the Veteran's disability picture is contemplated by the rating schedule, the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, the Board concludes that referral of this case for consideration of an extra-schedular rating under 38 C.F.R. § 3.321 (b)(1) is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Service Connection 5. Entitlement to service connection for low back condition, to include as secondary to service-connected left knee disability The Veteran contends that his low back condition is due to his service-connected left knee disability. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. In determining whether service connection is warranted for a disability, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is/was aggravated beyond its natural progress by service-connected disability. The July 2013 VA examiner noted a diagnosis of the lumbar spine, but did not list a back diagnosis. The July 2019 VA examiner found the Veteran does not have a diagnosis. A July 2019 private treatment record noted the Veteran has degenerative changes of the spine. The April 2020 VA examiner noted mild lower thoraco upper lumbar scoliosis. The Board finds the evidence is in equipoise and resolves reasonable doubt in the Veteran's favor to find that he has a current disability of the spine. The Board concludes that, while the Veteran has a current disability of the spine (low back disability), the preponderance of the evidence is against finding that the Veteran's low back disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The April 2020 VA examiner opined that it is less likely than not that the Veteran's low back disability is proximately due to or the result of, or aggravated by the Veteran's service connected left knee instability, degenerative arthritis of the left knee, or status post left medial meniscectomy. The examiner opined that the Veteran's low back disability is instead due to something intrinsic to the lumbar spine. The rationale was there is no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 centimeters so that the individual's gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. The examiner stated that it is not unusual for two joints to share properties in the same person, but one joint's disease does not "spread" to another or cause damage to it. The Veteran believes his low back disability is proximately due to or the result of/aggravated beyond its natural progression by his service-connected left knee disabilities. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the April 2020 VA examiner's opinion. Therefore, entitlement to service connection for low back disability is not warranted. 6. Entitlement to a total rating based upon individual unemployability (TDIU) The Veteran seeks entitlement to a TDIU. A total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Nevertheless, even when a Veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). However, the Board does not have the authority to assign extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16 (b). The Veteran is service connected for instability of the left knee, rated as 30 percent disabling from May 27, 2005 (as the result of the decision herein), degenerative arthritis of the left knee, rated as 10 percent from May 27, 2005, status post left medial meniscectomy, rated as 10 percent from May 27, 2005, and scar associated with status post left medial meniscectomy, rated as noncompensable from May 27, 2005. As such, the Veteran does not meet the minimum rating requirements of 38 C.F.R. § 4.16 (a). Consequently, the Board must consider whether referral to the Director of Compensation Service for extraschedular consideration is warranted. An assessment for extraschedular referral requires consideration of the Veteran's service-connected disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). Unemployability associated with advancing age or intercurrent (i.e. non-service connected) disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough, as a schedular rating provides recognition of such. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The schedular criteria contemplate compensating a Veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. See 38 C.F.R. § 4.1. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. Referral for entitlement to TDIU on an extraschedular basis has been considered, but there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his or her service-connected disabilities, and there is no persuasive credible evidence that the Veteran is unemployable due to his service-connected disabilities. While the evidence reflects that the Veteran's disabilities cause some occupational impairment, it has not been persuasively shown they impact him so severely as to preclude him from obtaining and maintaining substantially gainful employment. According to the December 2012 VA Form 21-8940, Application for Increased Compensation based on Unemployability, the Veteran worked as a painter from 1993 to 1998. The Veteran completed two years of high school education. A January 2013 VA treatment record notes the Veteran was unemployed. In his February 2013 VA Form 21-8940, Application for Increased Compensation based on Unemployability, the Veteran related that he worked as a painter from January 2011 to February 2012 and lost approximately three weeks of work due to his service-connected disabilities. The July 2013 VA examiner opined that based solely on the Veteran's left knee degenerative joint disease, the Veteran would be able to perform the duties associated with sedentary employment with limited standing and walking. The Veteran testified at the December 2017 Board hearing that he completed the tenth grade and has no vocational training after service. He related he last worked in approximately 2012 when he was let go due to the inability to perform his duties. He states that house painting is the only thing he is trained in. A January 2018 VA treatment record reflects the Veteran was unable to give a coherent job history. He is trained to do house painting, may have worked ten to fifteen years, and stopped working three years prior. The VA Functional Capacity Evaluation showed that the Veteran is able to work at the sedentary-light physical demand level for an eight-hour day. See January 2018 VA Treatment Record. The July 2019 VA examiner opined that the Veteran's knee pain caused by his service-connected left knee condition and the knee instability leads to functional impairments in an occupational setting by not being able to walk and stand for a prolonged time. The Veteran lost two to four weeks of work time in the past twelve months. The evidence indicates the Veteran has been employed until, at least, 2012. From 2012, there is no persuasive evidence the Veteran's left knee disability precluded him from obtaining or securing gainful employment. The Board recognizes that the Veteran reported he stopped working as a painter in 2012. The fact that the Veteran was unable to do his occupation of choice does not in and of itself mean he was unable to secure and maintain other gainful employment. The record does not persuasively show that due to the Veteran's service-connected disabilities he was incapable of performing work that includes light physical work or non-physical work. It is not factually ascertainable that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The VA examiners and functional capacity evaluation found the Veteran able to perform light physical and non-physical work. While the Board does not doubt that the Veteran's service-connected disabilities had an effect on his employability, the probative and persuasive evidence of record does not indicate that it is factually ascertainable the Veteran was unemployable due to his service-connected disabilities. The Veteran is able to walk and stand for limited amounts of time. The Veteran's disabilities did not cause any auditory and visual limitations or mental defects. To the extent the Veteran asserts that his disabilities rendered him unemployable, the Board finds that the objective medical evidence outweighs his subjective complaints, as the medical evidence was formed by trained health care providers objectively performing their professional duties following objective testing. The Board finds that those objective medical findings are more persuasive because of the training and experience of the medical professionals. Thus, the evidence of record does not persuasively support a finding that the Veteran's service-connected disabilities prevented him from securing and following a substantially gainful occupation. Therefore, the Board will not refer this appeal to the Director of Compensation Service for extra-schedular consideration for the Veteran's period of claimed unemployability. Accordingly, the Board finds the preponderance of the evidence is against the Veteran's claim that he was not capable of performing the physical and/or mental acts required by employment. As the preponderance of the evidence is against his claim, a schedular TDIU is not warranted, and referral for consideration of an extraschedular TDIU, is also not warranted. While the Board has considered the applicability of the benefit of the doubt doctrine, it is not applicable because the preponderance of the evidence is against his claim. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.