Citation Nr: 21071248 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-17 253 DATE: November 30, 2021 ORDER From May 1, 2017, a rating in excess of 30 percent for right knee status post total knee replacement (right knee disability) is denied. From October 8, 2020, a rating of 40 percent rating for right knee disability is granted. Entitlement to an initial rating in excess of 60 percent for left knee status post arthroplasty (left knee disability) is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. From May 1, 2017, the Veteran's right knee disability is not shown to have been manifested compensable limitations of flexion or extension, recurrent subluxation or lateral instability, dislocated semilunar cartilage with frequent periods of "locking," pain and effusion into the joint, genu recurvatum, or malunion of tibia or fibula and was not ankylosed. 2. From October 8, 2020, the Veteran's right knee disability is not shown to have been manifested compensable limitations of flexion or extension, recurrent subluxation or lateral instability, dislocated semilunar cartilage with frequent periods of "locking," pain and effusion into the joint, genu recurvatum, or malunion of tibia or fibula and was not ankylosed. However, the Veteran's right knee disability did manifest as discernable loss in measurable degrees of functional loss during flare-ups. 3. The Veteran's left knee disability is rated at the highest schedular rating available without violating the amputation rule. 4. There is a relative equal balance of evidence for and against whether the Veteran's service-connected disabilities preclude the Veteran from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. From May 1, 2017, the criteria for a rating in excess of 30 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.10, 4.40, 4.45. 4.59, 4.71a, Diagnostic Codes 5003, 5055, 5010, 5256-63 (2021). 2. From October 8, 2020, the criteria for a rating of 40 percent for a right knee disability have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.10, 4.40, 4.45. 4.59, 4.71a, Diagnostic Codes 5003, 5055, 5010, 5256-63. 3. The criteria for an initial rating in excess of 60 percent for left knee disability have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Codes 5003, 5055, 5010, 5162, 5163, 5164, 5256-63. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to July 1983. These matters come before the Board of Veterans' Appeals (Board) from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2019 Board hearing. The claims file contains a copy of the hearing transcript. In May 2021, the Board remanded these matters. The Board finds that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). INCREASED RATINGS The Veteran asserts that he warrants higher ratings for his respective knee disabilities during the time frames under consideration. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (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 that rating. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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 that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. 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). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38C.F.R. §4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202, 206-8 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Disabilities of the knee and leg are generally rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. When considering disability of the musculoskeletal system, arthritis is considered. An evaluation of traumatic arthritis, Diagnostic Code 5010, is rated under the criteria for Diagnostic Code 5003, which in turn evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a. Painful motion of a joint not otherwise compensable is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. The rating criteria pertaining to Diagnostic Code 5010 was revised effective February 7, 2021. Posttraumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under an affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Prior to February 7, 2021, under Diagnostic Code 5257 for recurrent subluxation or lateral instability, a 10 percent rating was warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating was warranted for evidence showing that the recurrent subluxation or lateral instability can be characterized as moderate; and a 30 percent rating was warranted for recurrent subluxation or lateral instability which can be characterized as severe. The rating criteria pertaining to Diagnostic Code 5257 were revised effective February 7, 2021. A 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; and a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Under Diagnostic Code 5260 for limitation of flexion, a noncompensable rating is assigned for flexion limited to 60 degrees; a 10 percent rating is assigned for flexion limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees; and a 30 percent rating is assigned for flexion is limited to 15 degrees. Under Diagnostic Code 5261 for limitation of extension, a noncompensable rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 20 degrees; a 30 percent rating is assigned for extension is limited to 20 degrees; a 40 percent rating is assigned for extension is limited to 30 degrees; and a 50 percent rating is assigned for extension is limited to 15 degrees. Separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5256 pertains to ratings for ankylosis of a knee. The Court has scrutinized the "meaning" of ankylosis. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); Chavis v. McDonough, No. 18-2928 (April 16, 2021) ("flare-ups resulting in symptoms more nearly approximating ankylosis can warrant a higher rating under the general rating formula"). Diagnostic Code 5262 applies to ratings for impairment of the tibia and fibula. Diagnostic Code 5263 applies to rating genu recurvatum. The rating criteria pertaining to Diagnostic Code 5262 were revised effective February 7, 2021. However, as those Codes are not applicable in this matter, and the February 7, 2021 effective revision does not require further discussion. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that under 38 C.F.R. § 4.71, a separate evaluation may be assigned for meniscal problems under Diagnostic Codes 5258 or 5259, even when ratings are in effect under Diagnostic Codes 5257 and 5261. The Board must also consider functional impairment with respect to the baseline range of motion (ROM) noted during clinical evaluation. English v. Wilkie, 30 Vet. App. 347 (2018). Diagnostic Code 5055 pertains to prosthetic replacement of a knee joint. Upon such, 100 percent rating is in effect for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. The rating criteria pertaining to Diagnostic Code 5055 was revised effective February 7, 2021. A 100 percent rating is in effect for 4 months following implantation of prosthesis or resurfacing. Then, 60 percent rating is for application when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, rating is by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum evaluation for residuals of a total replacement is 30 percent. Diagnostic Code 5258 provides a maximum 20 percent rating when there is dislocated semilunar cartilage with frequent periods of "locking," pain and effusion into the joint. Diagnostic Code 5259 provides a maximum 10 percent rating for removal of symptomatic semilunar cartilage. Evidence and Analysis For the interval of time under consideration, the RO has rated the Veteran right and left knee disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5055. The RO received the Veteran's claim for entitlement to a TDIU on November 16, 2012 and interpreted it as a claim for increased ratings for all service-connected disabilities. The Board has already adjudicated the issue of an increased rating for the Veteran's right knee disability through May 1, 2017. Consequently, the Board limits its analysis to pertinent evidence applicable to the left knee disability exclusively prior to the aforementioned date and pertinent evidence applicable both knee disabilities thereafter. Left Knee Disability The Veteran and his spouse submitted statements noting the Veteran's left knee instability and loss of balance. The Veteran also noted that he fell a great deal. Additionally, the Veteran reported that his left knee limits activities with his children, showering, biking, and shopping. In June 2012, the Veteran submitted another lay statement. In pertinent part, he noted that both of his legs had worsened in severity and he reported instability, falling, and "giving way". In August 2012, the Veteran underwent a VA left knee examination. A VA clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriated evaluation (hereinafter "VA exam protocols"). The Veteran conveyed that left knee pain had worsened and decreased his quality of life. The Veteran endorsed left knee flare-ups while ambulating; traversing stairways; and standing. The Veteran had left knee extension to 10 degrees without objective evidence of pain. (The clinician did not provide a finding as to flexion.) The Veteran was capable of repetitive-use testing (of at least three repetitions) without additional loss in ranges of motion. (Here, the clinician indicated that the Veteran commanded flexion to 40 degrees.) Upon repetitive use, the clinician reported incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing. The clinician indicated that there was no evidence of tenderness or pain to palpation of the joints line and associated tissues. The Veteran retained 5/5 (normal) right knee strength. The clinician indicated that the Veteran did not have joint instability, recurrent patellar subluxation/dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or acquired traumatic genu recurvatum. The clinician noted left knee replacement residuals of chronic swelling, pain, and reduced range of motion. The clinician also noted that residuals included the knee "giving out" and a few falls. The Veteran reported that he used a brace on a constant basis and crutches on a regular basis. X-ray imaging did not disclose left patella subluxation. The clinician indicated functional impact upon the Veteran's ability to work, namely limitation on prolonged walking, standing, or traversing stairs. The Veteran reported that he has not been employed since 2008; prior to this period of unemployment, the Veteran had worked as a cook and as a night-time hotel manager. In April 2013, the Veteran reported for a VA left knee examination. The Veteran conveyed information about left knee flare-ups duplicative of those above. The Veteran commanded left knee flexion to 40 degrees and left knee extension to 10 degrees, both without objective evidence of pain. The Veteran was capable of repetitive-use testing (of at least three repetitions) without additional loss in ranges of motion. Upon repetitive use, the clinician reported less movement than normal, incoordination, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight bearing. The clinician indicated that there was no evidence of tenderness or pain to palpation of the joint line and associated tissues. The Veteran had 5/5 (normal) right knee strength. The clinician indicated that the Veteran did not have joint instability, recurrent patellar subluxation/dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or acquired traumatic genu recurvatum. The clinician noted left knee replacement residuals of chronic swelling, pain, and reduced range of motion. The Veteran reported that he used a brace on a constant basis and crutches on a regular basis. X-ray imaging did not disclose left patella subluxation. Opining as the functional impact on the Veteran's ability to work, the clinician indicated problems with lifting and carrying and pain with prolonged standing walking, standing, and traversing stairs. The clinician noted resulting work problems of increased tardiness and increased absenteeism; however, the clinician opined that the Veteran could be assigned different work duties to mitigate these resulting work problems. This disability moderately impacted the usual activity of chores and shopping; it severely impacted the usual activity of exercise; and it mildly impacted the usual activities of traveling and driving. In March 2014, VA received 12 pages of records from Ergo S., a private rehabilitation facility. A review of these records shows that the Veteran engaged in a physical therapist's (PT) March 2014 evaluation process. The PT wrote that based upon her Ergo modelling, the Veteran is incapable of sustaining an 8-hour day of sedentary work due to fatigue. This therapist extrapolated this from changes in heart rate, "performance reports" which disclosed pain in the knees and back, and (lastly) observed movements. This therapist noted observed movements; however, a review of these pages fails to disclose extensive findings specific to the clinical status of the Veteran's left knee strain. Likewise, the notation concerning the validity of the Ergo platform and a reference to an Alabama study published in 1994 does not address the specificities of the Veteran's clinical status or history. See Sklar v. Brown, 5 Vet. App, 140 (2003). In a June 2014 letter, Dr. H., a VA neurologist, wrote that the Veteran has degenerative joint disease in his knees and back. Dr. H. indicated that the VA orthopedic clinic treats the Veteran. The Veteran reported continued severe pain, and the physician noted that the condition was chronic and expected to continue. Dr. H. did not include any clinical records with this letter. Consequently, Dr. H. has not presented any clinical data to support the conclusions reached. As such, the Board finds Dr. H.'s letter to warrant diminished probative weight. Sklar, 5 Vet. App, 140. In July 2014, the Veteran's spouse submitted another lay statement. In pertinent part, she reported that the Veteran takes pain medication, "pitches over and falls," and experiences leg swelling. She also expressed her worry about leaving the Veteran alone because of his painful knees and potential for falling. Left Knee and Right Knee Disabilities A review of VA social work progress notes discloses that the Veteran received environmental and in-patient assessments. The Veteran endorsed difficulty walking, underscoring the pain associated with his total right knee replacement. Social workers noted, as of March 2016, that the Veteran worked on a full-time basis and did not receive any home-care service. VA treatment records show that the Veteran sought consultations for the residuals of his knee replacements. A clinician noted that the Veteran's right knee scar did not present right calf tenderness. X-ray imaging from May 2016 revealed that the Veteran's right knee prosthesis was in a good position clinically; whereas X-ray showed left knee arthroplasty changes. The Veteran complained of limited mobility and chronic knee problems. VA orthopedists assessed the status of the Veteran's knees on a regular basis to evaluate the Veteran's degrees of disability and recommend ameliorative treatment protocols. The Veteran participated in weight management programming during these treatment protocols. Orthopedic specialists also prescribed narcotics. In May 2018, a VA orthopedic clinician indicated that the Veteran sought a follow-up on the status of residuals of right knee total replacement. The clinician indicated that the Veteran reported that he continued to experience pain on the inside of his right knee; however, the Veteran did not report right knee instability or locking, and the Veteran reported that he did not need walking aids. At the Board hearing, the Veteran described the debilitating effects of his right and left knee disabilities. The Veteran testified that his right knee (as well as his left knee) swells up, continually "hangs," and goes out. The Veteran stated that because of his right and left knees, he cannot walk to his mailbox. Additionally, the Veteran testified that he experiences fatigue on repetitive use; pain on motion; immobilizing pain several times a week; and instability. And the Veteran reported that he relies upon knees braces and a walker. Interpreting a March 2019 VA x-ray report of the bilateral knees, a clinician found that the Veteran's right knee showed postsurgical change of total knee replacement with hardware in good alignment without loosening and degenerative changes at the posterior aspect of the patella with cystic changes and sclerosis. Whereas, the left knee showed posterior change of total knee replacement with hardware in good alignment without loosening and degenerative changes at the posterior aspect of the patella with cystic changes and sclerosis. In an April 2019 VA orthopedic consultation, a clinician reported that that the Veteran endorsed right knee pain of 6/10 and left knee pain 7/10. The clinician indicated that incisions were well healed; there were no signs of infection; and no bilateral knee effusion. In an August 2019 VA pain medicine consultation, a clinician reported that the Veteran sought treatment for multifocal orthopedic pain. The clinician explained that the Veteran "converted" from hydrocodone to methadone because the stronger narcotic caused the Veteran to "drift off". The Veteran indicated that his knees improved with both heat and ice packs; however, the Veteran also indicated that walking numerous yards aggravated his knee pain. The clinician reported that the Veteran conveyed that he lived alone but occasionally his daughter spent periods living with him. On October 8, 2020, the Veteran reported a VA knee examination. The clinician indicated that x-ray imaging showed that the Veteran's prostheses were intact and in good position. The Veteran endorsed flare-ups, notably as "real sharp pain" that prevailed for two-to-three days. However, the Veteran did not endorse functional impairment of either knee. The Veteran had right knee flexion to 90 degrees and right knee extension to zero degrees. Passive range of motion disclosed extension to 100 degrees and extension was to zero degrees. Range of motion itself did not contribute to functional loss. There was evidence of right knee pain upon flexion, upon weight bearing, and lateral and medial joint tenderness. However, there was no evidence of right knee crepitus. Left knee flexion was to 90 degrees and extension was to sero degrees. Passive range of motion disclosed extension to 100 degrees and extension was to zero degrees. Here, range of motion itself did not contribute to functional loss. There was evidence of left knee pain upon flexion, upon weight bearing, and lateral and medial joint tenderness. However, there was no evidence of left knee crepitus. The Veteran was able to perform repetitive use testing (of at least three repetitions) bilaterally, without additional functional losses or losses in range of motion. As such, the clinician reported that bilaterally neither pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. Whereas, bilaterally, pain significantly limited functional ability during flare-ups. The clinician translated such losses bilaterally into flexion to 45 degrees and extension to zero degrees. The Veteran had normal muscle strength bilaterally; there was no presence of muscle atrophy bilaterally; and there was no evidence of ankylosis bilaterally. Bilaterally, joint stability testing revealed normal results. The clinician reported that the Veteran had a right-side meniscus condition which manifested in frequent episodes of right joint pain. The Veteran reported that he used braces and a cane on a regular basis. As to functional impact on the Veteran's ability to work, the clinician opined that bilateral knee disabilities require the Veteran to avoid prolonged walking and an inability to sit for prolonged periods of time. Non-weight bearing was not productive of functional loss bilaterally. In October 2021, the Veteran's representative submitted a brief. In pertinent part, the representative articulated applicable law and regulations and opined that the severity of the Veteran's right and left knee disabilities had not been assessed for 10 months and had worsened. The Veteran believes that his right knee disability warrants a rating in excess of 30 percent from May 1, 2017 and his left knee disability warrants an initial rating in excess of 60 percent. Certainly, the Veteran is competent to report discernable symptoms. The Board has considered this lay evidence. 38 C.F.R. § 3.159(a)(2). The evidence of record does not disclose that either the Veteran, his now deceased spouse, or his representative possess the medical expertise to render an opinion as to the clinical severity of any complex medical matter, such as bilateral knee disabilities. 38 C.F.R. § 3.159(a)(1). The Board finds that the competent clinical evidence of record is entitled to considerable probative weight. From May 1, 2017, the Veteran's right knee disability is rated at 30 percent under Diagnostic 5055. The Veteran's left knee disability is rated at 60 percent under this same Diagnostic Code. Diagnostic Code 5055 provides for a minimum 30 percent rating for residuals of a total knee replacement. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. Whereas a 60 percent is available when such residuals consist of severe painful motion or weakness in the affected extremity. Turning initially to the right knee, Diagnostic Code 5256 is not for application as there is no evidence of ankylosis of the right knee or right knee "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988). Here, the Board notes that has a prosthesis and not a "natural" knee (including a meniscus), as such Diagnostic Code 3257 is not for application as the Veteran no longer has a meniscus. Moreover, Diagnostic 5055 contemplates the symptoms of pain and immobility associated with the working parts of prostheses. Under Diagnostic Code 5260, a noncompensable rating is warranted when flexion is limited to 60 degrees. The October 2020 VA clinician indicated that the Veteran commanded right flexion to 90 degrees. As such, a compensable rating is not available. Under Diagnostic Code 5261, there would need to be right extension limited to 10 degrees for a compensable rating. The October 2020 VA clinician indicated that the Veteran commanded right extension to zero degrees. As such, a compensable rating is not available. And Diagnostic Code 5262 applies exclusively to impairment of the tibia and fibula. The October 2020 VA clinician indicated that the that the Veteran did not have medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. Consequently, a compensable rating is not available. The Board has considered whether higher ratings are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. The October 2020 clinician indicated right knee functional loss upon flare-ups. Specifically, the clinician indicated a loss of 45 degrees of flexion and zero degrees in extension. The Board finds that this discernable loss in measurable degrees of functional loss during flare-ups warrants an additional 10 percent rating as provided in Diagnostic Code 5055 and references to 5260, 5261. The Board recognizes that the Veteran's flare-up symptoms did not "emerge" upon the October 8, 2020 VA examination. However, this is the first evidence of record which quantifies in degrees the Veteran's functional loss during flareups. Consequently, the Board finds that the Veteran's service-connected right knee disability warrants 30 percent under Diagnostic Code 5055 and an additional 10 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59. Therefore, the Board grants a 40 percent rating for right knee disability from October 8, 2020. Turning to the left knee disability, the Veteran is in receipt of the maximum schedular rating under Diagnostic Code 5055 for residuals that consist of severe painful motion or weakness in the affected extremity. This is the maximum schedular rating available. The Board has considered whether compensation under other Diagnostic Codes might be warranted; however, the combined evaluations for disabilities at or below the knee shall not exceed a 60 percent disability rating, as provided by 38 C.F.R. § 4.71a , Diagnostic Codes 5162, 5163, 5164 (amputation at the middle or lower thirds of the thigh; amputation of the leg with defective stump, thigh amputation recommended; and amputation not improvable by prosthesis controlled by natural knee action all warrant a 60 percent evaluation). The amputation rule provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, where amputation is performed. 38 C.F.R. § 4.68. Since the Veteran was already in receipt of a 60 percent rating for residuals left knee status post arthroplasty because doing so would in violation of the amputation rule. Consequently, the Board finds that the preponderance of evidence is against an initial rating in excess of 60 percent for left knee disability, the highest schedular rating under Diagnostic Code 5055. Neither the Veteran nor his representative have raised any other issues, to include extra-schedular consideration. Moreover, the evidence of record does not reasonably raise additional issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. 524; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § § 4.16(a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. §§ 4.16(b). In Ray v. Wilkie, 21 Vet. App. 58, 67 (2019), the Court interpreted the phrase "unable to secure and follow a substantially gainful occupation" to have 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, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran's ability to secure or follow that type of employment. The Veteran is service connected for the following disabilities (with the exception of 100 percent ratings for periods of hospitalization 1) status post left total knee arthroplasty at 60 percent from April 1, 2006; 2) status post right total knee arthroplasty at 30 percent from May 1, 2017 and 40 percent from October 8, 2020; 3) chronic right knee strain at 10 percent from October 19, 2010 to March 3, 2013; 4) right knee instability at 20 percent from January 16, 2011 to March 3, 2016; and 5) residual linear surgical scars at a noncompensable rating from September 14, 2010. Consequently, the Veteran met the schedular requirements from April 1, 2006. See 38 C.F.R. § 4.16(a). In May 2006 correspondence, the Veteran noted that he was unable to return to his employment as a security guard without release from his surgeon. In a June 2006 VA physical therapy (PT) final note, a clinician reported that the Veteran was still experiencing severe left knee pain upon exercising and ambulating distances. Upon a July 2006 left knee examination, a clinician opined that there is mild functional impairment of job-related activities due to his left knee condition. In November 2010, VA received a statement from the Veteran. In pertinent part, the Veteran reported that he was told that his right knee will take 6 months to heal. The Veteran reported that he experienced instability, popping, stiffness constant pain, and swelling. He also endorsed difficulty walking, standing, and attending to daily chores. In January 2010, a VA clinician reported that the Veteran continued to experience severe discomfort and instability. The clinician indicated that the Veteran was keen to have some sort of intervention to help assuage his symptoms. In July 2011, both the Veteran and his spouse submitted lay statements. In pertinent part, they noted that the Veteran's right knee "goes out" frequently. Right knee symptoms included pain, swelling, and loss of balance. The Veteran also endorsed that he fell a lot because of both knees. Additionally, the Veteran reported that both his knees limit activities with his children, showering, biking, and shopping. In June 2012, the Veteran submitted another statement. In pertinent part, he conveyed that both of his legs (presumably attributes of right and left knee) had worsened. He endorsed instability, falling, and "giving way". Upon June 2012 examination, a VA clinician did impact his ability to work. Specifically, the clinician noted an unstable left knee and pain/occasional swelling. This clinician did not state that this disability totally impaired to Veteran's ability either to obtain or sustain gainful employment. Upon August 2012 knees examination, the clinician indicated functional impact on the Veteran's ability to work, namely limitation on prolonged walking, standing, or traversing stairs. The Veteran reported that he has not been employed since 2008 when he had worked as a cook and a night-time hotel manager. At the April 2013 knees examination, the VA clinician indicated problems with lifting and carrying and pain with prolonged standing walking, standing, and traversing stairs which would functionally impact the Veteran's ability to work through absenteeism. However, the clinician opined that the Veteran could be assigned different work duties to mitigate these resulting work problems. This disability moderately impacted the usual activity of chores and shopping; it severely impacted the usual activity of exercise; and it mildly impacted the usual activities of traveling and driving. This clinician did not state that this disability totally impaired to Veteran's ability either to obtain or sustain gainful employment. In a May 2014 VA rehabilitation plan package, a counselor indicated that the Veteran would maximize independence in daily life to increase his quality of life. The counselor also reported that the Veteran reported that he was able to function more independently at home. These records also show that the Veteran worked as a truck driver from 1983-1992; in security from 1996 to 1988; and security from 2002 to 2004. A counselor also reported that he spent two hours daily on the computer and light gardening with assistance. This report includes a copy of the Veteran's resume which shows that the Veteran possesses a high school diploma and two community college associate degrees (hotel restaurant and institution as well as applied science in culinary arts). In March 2014, VA received 12 pages of records from Ergo S., a private rehabilitation facility. A review of these records shows that the Veteran engaged in a physical therapist's (PT) March 2014 evaluation process. The PT wrote that based upon her Ergo modelling, the Veteran was incapable of sustaining an 8-hour day of sedentary work due to fatigue. This PT extrapolated this from changes in heart rate, "performance reports" which disclose pain in the knees and back and observed movements. See Sklar v. Brown, 5 Vet. App, 140 (2003). In July 2014, VA received a lay statement from the Veteran's spouse. She noted that the Veteran took pain medication that causes him to sleep, fall and have swelling of his legs. In another lay statement of this month, a son reported that the Veteran takes pain medication, "pitches over and falls," and experiences leg swelling. She also expressed her worry about leaving the Veteran alone because of his knees and potential for falling. In a July 2014 lay statement, the Veteran conveyed that his pain medication masked the severity of his symptoms at his latest VA examination. In a June 2014 letter, Dr. H., a VA neurologist, wrote that the Veteran has degenerative joint disease in his knees and back. Dr. H. indicated that the VA orthopedic clinic treats the Veteran. The Veteran reported continued severe pain, and the physician noted that the condition was chronic and expected to continue. Dr. H. did not include any clinical records with this letter. Consequently, Dr. H. has not presented any clinical data to support the conclusions reached. As such, the Board finds Dr. H.'s letter to warrant diminished probative weight. Sklar, 5 Vet. App, 140. In his March 2016 substantive appeal (VA Form 9), the Veteran indicated that his right knee and left knee have kept him from working and will continue to do so. A review of VA social work progress notes discloses that the Veteran received environmental and in-patient assessments. The Veteran endorsed difficulty walking, underscoring the pain associated with his total right knee replacement. VA treatment records show that the Veteran sought consultations for the residuals of his right knee replacement. A clinician noted that the Veteran's right knee scar did not present right calf tenderness. X-ray imaging from May 2016 revealed that the Veteran's right knee prosthesis was in a good position clinically. The Veteran complained of limited mobility and chronic knee problems. VA treatment records show that the Veteran sought consultations for the residuals of his right knee replacement. A clinician noted that the Veteran's right knee scar did not present right calf tenderness. X-ray imaging from May 2016 revealed that the Veteran's right knee prosthesis was un a good position clinically. The Veteran complained of limited mobility and chronic knee problems. VA orthopedists assessed the status of the Veteran's knees on a regular basis to evaluate the Veteran's degrees of disability and recommend ameliorative treatment protocols. In May 2018, a VA orthopedic clinician indicated that the Veteran sought a follow-up on the status of residuals of right knee total replacement. The clinician indicated that the Veteran reported that he continued to experience pain on the inside of his right knee; however, the Veteran did not report right knee instability or locking, and the Veteran reported that he does not need walking aids. As articulated above, at the Board hearing, the Veteran described the debilitating effects of his right and left knee disabilities. The Veteran testified that his right knee (as well as his left knee) swells up, continually "hangs," and goes out. The Veteran stated that because of his right knee (as well as his left knee), he cannot walk to his mailbox. Additionally, the Veteran conveyed that he experiences fatigue on repetitive use; pain on motion; immobilizing pain several times a week; and instability. And the Veteran reported that he relies upon knees braces and a walker. VA treatment records show that the Veteran sought consultations for the residuals of his knee replacements. A clinician noted that the Veteran's right knee scar did not present right calf tenderness. X-ray imaging from May 2016 revealed that the Veteran's right knee prosthesis was un a good position clinically; whereas X-ray showed left knee arthroplasty changes. The Veteran complained of limited mobility and chronic knee problems. VA orthopedists assessed the status of the Veteran's knees on a regular basis to evaluate the Veteran's degrees of disability and recommend ameliorative treatment protocols. The Veteran participated in weight management programming during these treatment protocols. Orthopedic specialists also prescribed narcotics. Interpreting a March 2019 VA x-ray report of the bilateral knees, a clinician found that the Veteran's right knee showed postsurgical change of total knee replacement with hardware in good alignment without loosening and degenerative changes at the posterior aspect of the patella with cystic changes and sclerosis. Whereas, the left knee showed posterior change of total knee replacement with hardware in good alignment without loosening and degenerative changes at the posterior aspect of the patella with cystic changes and sclerosis. Upon the October 2020 VA knees examination, the clinician opined that the Veteran's bilateral knees functionally impacted the Veteran's ability to work, namely limits to prolonged walking and ability to sit for extended periods of time. This clinician did not state that these disabilities totally impaired to Veteran's ability either to obtain or sustain gainful employment. In his brief, the Veteran's representative argued that evidence militates in favor of granting a TDIU due to the Veteran's functional limitations. The Board finds that there is a relative equal balance of evidence for an against whether the Veteran is unemployable because of his service connected disabilities that include the residual impairment of both knee replacements but not a back disability. While the Veteran asserts that his service-connected disabilities rendered him unable to obtain or retain employment consistent with his education and experience, the evidence of record shows that the Veteran has two associate degrees (hotel restaurant and institution as well as applied science in culinary arts) and extensive professional experiences in the fields of security and trucking. Moreover, the Veteran has reported expertise in the field of culinary arts. The Veteran's significant mobility limitations with use of support devices and potential for frequent falling precludes work in food preparation. However, the Veteran does have management skills in the hospitality field that can be performed at a desk or workstation where sitting limited mobility can be accommodated. He is able to use a computer recreationally for up to two hours per day. In the contemporary workplace, most employers offer reasonable accommodations pursuant to the Americans with Disabilities Act (ADA), to allow for workplace alteration or downtime due to disabilities. In the Veteran's case, it would be feasible for an employer to provide an ergonomic workstation and break periods in quiet settings where the Veteran could collect himself during bouts of bilateral knee pain. The Board recognizes that the Veteran's disabilities present challenges and limitations. Collectively, the Board finds that this combination of education and work experiences, weight in favor of the Veteran's ability to obtain and maintain substantial employment considering his specific education and specific work experiences in administration and hotel management such as his previous work as a hotel clerk. See Withers v. Wilkie, 30 Vet. App. 139 (2018). On the other hand, there is evidence throughout the period of the appeal of pain and fatigue that has been accepted by multiple clinicians, multiple falls despite the use of support devices, and the use of pain medication. Outpatient records most often refer to narcotic pain medication, and the Veteran's spouse reported that it caused sleepiness. Although the Veteran reported that he could drive a vehicle but for short distances, his pain medication impaired wakefulness and concentration. His mobility limitations extended to difficulty dressing and bathing, though still done independently. Although the trend throughout the period has been an increase in pain and fatigue and decrease in function, the Board finds that the weight of both medical and lay evidence is in relative balance such that in combination his service-connected disabilities preclude the Veteran from obtaining and maintaining gainful employment. Consequently, the Board has considered the economic and noneconomic components of the Veteran's TDIU claim. Ray, 31 Vet. App. 58. Accordingly, entitlement to a grant of TDIU is granted for the entire period of the appeal. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B.J. Komins, 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.