Citation Nr: 21072770 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 09-41 904 DATE: December 6, 2021 ORDER A rating in excess of 30 percent for a total right knee replacement is denied. From August 1, 2011 onward, a rating of 10 percent, but no higher, for a right knee disability (slight instability) is granted. A total rating based on individual unemployability (TDIU) is granted effective August 1, 2011. REMANDED Entitlement to a TDIU prior to August 1, 2011 is remanded. FINDINGS OF FACT 1. For the period on appeal, the Veteran's right knee disability manifested as intermediate chronic knee replacement residuals. 2. From August 1, 2011 onward, the Veteran's right knee instability was slight. 3. The Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment consistent with his education and work history from August 1, 2011 onward. CONCLUSIONS OF LAW 1. For the period on appeal, the criteria for a rating in excess of 30 percent disabling for a right knee disability (total knee replacement) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5055. 2. From August 1, 2011 onward, the criteria for a rating of 10 percent, but no higher, for a right knee disability (slight instability) are met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. The criteria for TDIU are met since August 1, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from November 1965 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran previously testified via videoconference before a Veterans Law Judge (VLJ) in January 2012, and a written transcript of that hearing is associated with the record. The VLJ who conducted that hearing is no longer available to participate in this decision. The Veteran was offered an opportunity to have an additional hearing before a new VLJ who would participate in this decision but declined an additional Board hearing in February 2017. See 2/6/2017, Correspondence. These matters were most recently before the Board in January 2020. These matters have now returned to the Board for appellate consideration. As such, the Board finds there has been substantial compliance with its prior remand directives as a new examination was performed for the Veteran's knee disability. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Arthritis due to trauma is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). Effective February 7, 2021, DC 5010 provides that traumatic arthritis is now to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability...to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance' including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). 1. Entitlement to a rating in excess of 30 percent for a total right knee replacement. The Veteran receives a 30 percent rating from August 1, 2011 onward under DC 5055. As noted in the January 2020 Board action, the issue of an increased disability rating for the right knee prior to August 1, 2011 has already decided in an April 2017 Board decision. Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. DC 5055 provides for prosthetic replacement of the knee joint assigns a 100-percent evaluation for one year following implantation of prosthesis. With chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60-percent rating is assigned. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to DCs 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of tibia and fibula). The minimum rating is 30 percent. 38 C.F.R. § 4.71a. VA revised this DC on February 7, 2021. DC 5055 was changed in early 2021 so that following prosthetic replacement of the knee joint, or resurfacing, a 100 percent rating will be assigned for only 4 months. Thereafter, the rating criteria is the same as the prior code, with the exception of resurfacing the knee, which as a note points out after the DC, after the conclusion of the 100 percent rating a resurfaced knee will be evaluated under DCs 5256 through 5262 with no minimum evaluation for resurfacing. Note (3) to the general section about prosthetic replacements and resurfacing also specifies that the term "prosthetic replacement" in DC 5055 means a total knee replacement. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, DC 5257 covers "other impairment of the knee," and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. Effective February 7, 2021, VA also amended DC 5257. For recurrent subluxation or lateral instability, a 10 percent rating is assigned for a sprain, incomplete ligament tear or complete ligament tear causing persistent instability without prescribed assistive device or bracing for ambulation. A 20 percent rating is warranted when a) a sprain, incomplete ligament tear, or repaired complete ligament tear causes persistent instability; or b) an unrepaired or failed repair of a complete ligament tear causes peristent instability. A prescribed assistive device or bracing for ambulation is required. A 30 percent rating requires unrepaired or failed repair of complete ligament tear causing persistent instability and a prescription for both an assistive device and bracing for ambulation. For patellar instability also rated under DC 5257, a 10 percent rating is assigned for a diagnosed condition that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted when there is a diagnosed condition with a prescription for either a brace, cane, or walker. A 30 percent rating requires a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription for brace and either a cane or a walker. Under DC 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. Leg extension limited to 30 degrees warrants a 40 percent rating. Leg extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. Diagnostic Code 5262 was amended to now provide that "malunion of" the tibia and fibula is now rated under appropriate knee or ankle diagnostic codes. Additionally, a noncompensable rating is assigned for medial tibial stress syndrome (MTSS) or shin splints for treatment of less than 12 consecutive months, one or both lower extremities. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5262). Prior to February 7, 2021, the Board will apply the prior rating criteria. From February 7, 2021 onward, the Board applies the criteria that is more favorable to the Veteran. The Veteran underwent an examination in December 2011. He did not report flare-ups. He had flexion of 120 degrees and had normal extension without pain. He was able to perform three times repetitive use testing with no loss of motion for extension. He had less movement than normal. Muscle strength testing was normal (5/5). He had normal joint stability testing (Lachman, Posterior Drawer, Medial-Lateral). He did not have a history or evidence of recurrent patellar subluxation/dislocation. He did not have "shin splints,: stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. His meniscectomies were reported. For his right knee total joint replacement, the examiner reported intermediate degrees of residual weakness, pain, or limitation of motion. He regularly used a cane. In June 2016, he participated in an additional examination for his knee. He did not report flare-ups or functional loss/impairment. He had flexion of 105 degrees with pain and normal extension without pain. He had pain on weight bearing. He was able to perform three times repetitive use testing with no loss of motion for extension. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. He had normal muscle strength, no atrophy, and no ankylosis. He did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal (Anterior, Posterior, Medial, and Lateral instability). He did not have "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. For his right knee total joint replacement, the examiner reported intermediate degrees of residual weakness, pain, or limitation of motion. He constantly used a cane. An examination in April 2017 discussed the Veteran's knee disability. He had flexion of 95 degrees and normal extension, both with pain. He had localized tenderness or pain on palpation. He was able to perform three times repetitive use testing with no loss of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. He had normal muscle strength, no atrophy, and no ankylosis. He did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal (Anterior, Posterior, Medial, and Lateral instability). He did not have "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. For his right knee total joint replacement, the examiner reported intermediate degrees of residual weakness, pain, or limitation of motion. He occasionally used a brace and regularly used a cane. The examiner reported there was no evidence of pain on passive range of motion or in non-weight bearing. He was scheduled for another examination in October 2017. He did not report flare-ups or functional loss. Range of motion testing was normal. He had pain on flexion and with weight bearing and objective evidence of general localized tenderness. He was able to perform three times repetitive use testing with no additional functional loss or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. He had normal muscle strength, no atrophy, and no ankylosis. He did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal (Anterior, Posterior, Medial, and Lateral instability). He did not have "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. For his right knee total joint replacement, the examiner reported intermediate degrees of residual weakness, pain, or limitation of motion. He constantly used a brace and regularly used his cane. The examiner reported there was no evidence of pain on passive range of motion or in non-weight bearing. The Board previously found these examinations insufficiently addressed passive range of motion. An examination was performed in April 2019. His knee pain was aggravated by walking and standing. He did not report flare-ups or functional loss/impairment. He had 60 degrees of flexion and normal extension range of motion but had pain on both. He had pain on weight bearing and localized tenderness/pain on palpation. He was able to perform three times repetitive use testing and pain caused additional functional loss. Range of motion remained the same. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. He had normal muscle strength, no atrophy, and no ankylosis. He did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal (Anterior, Posterior, Medial, and Lateral instability). He did not have "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. For his right knee total joint replacement, the examiner reported intermediate degrees of residual weakness, pain, or limitation of motion. He regularly used a brace, cane, and walker. He had pain on passive range of motion and in non-weight bearing. The Board again found the 2019 examination insufficiently addressed passive range of motion. His most recent examination is from October 2021. His condition had worsened over the period on appeal. He did not report flare-ups or functional loss/impairment, or a history of instability, recurrent subluxation, or frequent swelling. He had 110 degrees of flexion with pain and had normal extension without pain. His passive range of motion was the same as active and he had pain on flexion but not extension. His pain on flexion for active and passive range of motion and on weight-bearing did not cause functional loss. He was able to perform three times repetitive use testing with no additional loss of function or range of motion. Pain significantly limited functional ability with repeated use over time. His range of motion for flexion was 90 degrees and his range of motion for extension remained normal. He had normal muscle strength, no atrophy, and no ankylosis. He did not have recurrent subluxation, persistent instability, or a ligament tear. He did not have a prescription for a cane, walker, crutches, or a brace. He did not have recurrent patellar instability. He did not have recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment. For his right knee total joint replacement, the examiner reported intermediate degrees of residual weakness, pain, or limitation of motion. He was unable to walk longer than 20-30 minutes. The Board finds this examination to be the most reflective of the Veteran's knee disability during the period on appeal. At the examination, the Veteran stated that his knee disability had worsened. As such, it is reasonable to conclude the Veteran's active and passive range of motion, as well as pain on weight bearing and on non-weight bearing would be no worse than at this examination for the period on appeal. He testified at a Board hearing in January 2012. He stated his knee gives out. He took pain medication. He had difficulty with stairs and extended standing and walking. He had fallen down twice in the past two years. After review of the competent and probative evidence, the Board finds that a rating in excess of 30 percent for the right knee replacement under DC 5055 is not warranted. The examinations after the total knee replacement document and support a finding of intermediate residuals. Additionally, the records tend to show intermediate residuals as the Veteran has no flare-ups reported after his surgery and his range of motion testing for extension has been normal. See Intermediate, Merriam-Webster; https://www.merriam-webster.com/dictionary/intermediate (defining "intermediate" as occurring in the middle of a process or series). Additionally, the competent evidence just noted above does not tend to show that the Veteran's disability manifested as symptoms analogous to a rating higher than 30 percent under DCs 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of tibia and fibula). The Veteran does not have ankylosis or impairment of the tibia and fibula. Additionally, his extension was normal for the period on appeal. A rating of 10 percent under DC 5257 (instability) is warranted from August 1, 2011. The Board has previously found that higher ratings/increased ratings were not warranted prior to June 28, 2010. The Veteran received a 100 percent rating for his right knee replacement from June 28, 2010 until July 31, 2011. It also appears the RO replaced the Veteran's instability rating under 5257 with the 30 percent rating for his right knee replacement. Therefore, August 1, 2011 is the earliest date for the grant of this rating. A separate rating of 10 percent is warranted as the Veteran reported at 2012 hearing that his knee would give out and he had fallen because of his knee. The Board acknowledges the medical testing showing normal stability. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity. However, when resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 10 percent is warranted from for the period on appeal as he competently reported that his knee would give out. A higher rating is not warranted as there is not competent evidence of instability (positive instability testing) or 3/5 weakness during this period on appeal as shown in the medical records and the examination reports (reflecting normal joint stability testing by a competent medical professional). Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value and given great weight. Nor does the Veteran assert that his knee gives out frequently as indicated by his hearing testimony reporting falling twice in two years. See Frequent, Merriam-Webster, https://www.merriam-webster.com/dictionary/frequent (defining the adjective "frequent" as, among other things, happing at short intervals or acting or returning regularly or often). Rather, he testified at the 2012 hearing that he falls one time per year (twice in the past two years). Also, for example, the above examinations show normal joint stability testing. This competent medical evidence tends to weigh against moderate subluxation or lateral instability. As such, a rating in excess of the now assigned 10 percent is not warranted. Additionally, from February 7, 2021 onward, a rating of 20 percent is not warranted under the revised criteria as the evidence does not tend to show that the Veteran has a prescription for an assistive or bracing device. Additionally, his medical records do not show a sprain or ligament tear. As such, a rating in excess of the now assigned 10 percent is not warranted under DC 5257. 2. Entitlement to a TDIU. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability 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, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. From August 1, 2011 onward, the Veteran's service-connected disabilities include posttraumatic stress disorder at 30 percent prior to June 23, 2016, 50 percent prior to October 26, 2017, and 70 percent thereafter; residuals of a left knee replacement at 30 percent; residuals of a right knee replacement at 30 percent; degenerative joint disease for the right knee at 10 percent; right knee instability at 10 percent; and degenerative arthritis of the spine at 10 percent. He received a 100 percent rating from June 28, 2010 until July 31, 2011. He has a combined rating of 70 percent with a single disability (right knee ratings) rated at 40 percent or higher from August 1, 2011 onward. Therefore, his evaluation for compensation due to his service-connected disabilities met the percentage rating standards for TDIU under 38 C.F.R. § 4.16(a) from August 1, 2011 onward. The Veteran's VA Form 21-8940 reported that he worked until July 1998 as a senior vice president in an administrative role. He was employed in this role from September 1980 until July 1998. He has some college education. The Veteran's 2008 examination provides a more detailed job history. He worked in his senior vice president role until 1998 when the company was sold. He attempted to find other positions but was unable to do so because of his ambulatory restrictions. He further tried to work at an automobile dealership but could not because of his inability to remain standing. He left other employment opportunities because of severe orthopedic pain. The 2011 examination reported the Veteran was limited in his ability to squat, lift objects, run, climb stairs, and stand for long periods of time. In June 2016, April 2017, October 2017, April 2019, the examiners reported no functional impact. The October 2021 examiner reported the Veteran would be unable to walk for longer than 20-30 minutes. In this case, the record reflects that the Veteran suffered from service-connected disabilities which hindered his ability to maintain gainful employment from August 1, 2011 onward. The Veteran's service-connected orthopedic disabilities hindered any physically intensive position as the Veteran is unable to stand or walk for extended periods. He has difficulty climbing stairs. The Board acknowledges the Veteran has had experience in a more sedentary position. However, after his last full-time employment in 1998, he has had high levels of pain due to his service-connected disabilities. He was unable to stand for longer periods because of his pain. He attempted to maintain employment in multiple different occupations but was unable to do so because of his increased pain. The Board acknowledges some of the examination reports found no functional impact due to his service-connected orthopedic disabilities. However, there was no accompanying rationale or support, and the Board places less probative value on this evidence. As such, when resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected disabilities prevented him from being able to secure or follow a substantially gainful occupation from August 1, 2011 onward. An award of TDIU prior to this date is addressed in the Remand section below. REASONS FOR REMAND Entitlement to a TDIU prior to August 1, 2011 is remanded. The evidence of record tends to show the Veteran last maintained full-time employment in 1998. This decision grants TDIU from August 1, 2011 onward. He received a 100 percent rating from June 28, 2010 until July 31, 2011. However, TDIU is not in effect for the whole period and thus remains on appeal. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Prior to that date, the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis because the combined rating does not satisfy the percentage requirements. In this regard, the Veteran does not have a single disability of 60 percent disabling, and he does not have a service-connected disability that is 40 percent or greater with a total combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Prior to June 28, 2010 (temporary total rating), he was rated at a combined 20 percent rating from December 4, 1998 until September 28, 2007 when he received a combined 60 percent rating but with multiple disability ratings (PTSD and orthopedic disabilities). 38 C.F.R. § 4.25 (2021). Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001); Wages v. McDonald, 27 Vet. App. 233, 236 (2015). There is competent evidence (2008 examination) suggesting that he was unable to work due to his service-connected disabilities prior to June 28, 2010. See, e.g., 4/1/2008, C&P Examination , at p. 2. Additionally, in light of the recent United States Court of Appeals for Veterans Claims decision regarding extraschedular referral, the Board finds the evidence of record suggests a reasonable possibility the Veteran was unemployable due to his service-connected disabilities prior to June 28, 2010. See Snider v. McDonough, No. 19-6707, (Nov. 19, 2021). As such, the Board will remand this this matter for referral to the Director, Compensation Service. This matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. Send appropriate notice to the Veteran regarding TDIU and complete any necessary development. This is to include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his employment history and his educational background for proper adjudication of the TDIU matter. He should be asked to specifically identify by date the period or periods during which he claims individual unemployability due to service-connected disabilities, especially focusing on the period prior to June 2010. 3. Refer the Veteran's request for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities preclude him from participating in gainful employment prior to June 28, 2010. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.