Citation Nr: 21073342 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-41 441 DATE: December 8, 2021 ORDER Entitlement to a rating in excess of 20 percent for right knee patellofemoral pain syndrome with symptomatic chondromalacia of the patella and synovitis, status post arthroscopic resection, is denied. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The service-connected right knee patellofemoral pain syndrome with symptomatic chondromalacia of the patella and synovitis, status post arthroscopic resection, is manifested by chronic pain, limited range of motion (at most, flexion to 40 degrees and extension to 0 degrees, with consideration of limitations due to pain, weakened movement, excessive fatigability with use, or incoordination including during repeated use over time and fare-ups), and early patellofemoral osteoarthrosis with articular cartilage fissuring in the central trochlea and small joint effusion; there is no objective evidence of semilunar cartilage injury or ankylosis. 2. The service-connected left knee patellofemoral pain syndrome is manifested by chronic pain, limited range of motion (at most, flexion to 40 degrees and extension to 0 degrees, with consideration of limitations due to pain, weakened movement, excessive fatigability with use, or incoordination including during repeated use over time and fare-ups), and mild patellofemoral osteoarthrosis with articular cartilage fissuring in the central trochlea and small joint effusion; there is no objective evidence of semilunar cartilage injury or ankylosis. 3. For the period of the appeal, the Veteran's service-connected disabilities (right knee patellofemoral pain syndrome, [rated] 20 percent; left knee patellofemoral pain syndrome, 10 percent; right knee patellar instability, 10 percent from June 9, 2021; left knee patellar instability, 10 percent from June 9, 2021; and right knee surgical scars, 0 percent from August 8, 2018) have been rated 30 percent, combined before June 9, 2021 and 50 percent, combined from that date; the preponderance of the evidence is against a finding that the service-connected disabilities, alone, were of such a nature and severity as sufficient to result in functional impairment that precluded substantially gainful employment. CONCLUSIONS OF LAW 1. A rating in excess of 20 percent for right knee patellofemoral pain syndrome with symptomatic chondromalacia of the patella and synovitis, status post arthroscopic resection, is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5260, 5261. 2. A rating in excess of 10 percent for left knee patellofemoral pain syndrome is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Codes 5260, 5261. 3. The schedular rating requirements for a TDIU rating are not met, and TDIU on an extraschedular basis is not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1986 to June 1990. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 Department of Veterans Affairs (VA) rating decision. An October 2018 Board decision denied ratings higher than 20 percent for the right knee and 10 percent for the left knee. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). An August 2019 CAVC Order granted a July 2019 Joint Motion for Remand (JMR) of the parties, thereby vacating the Board's decision and remanding the matters to the Board for action consistent with the JMR. Meanwhile, the Veteran underwent right knee surgery in June 2019 and was awarded a temporary total rating under 38 C.F.R. § 4.30, for post-surgical convalescence, for the period from June 14, 2019 to October 1, 2019, from which date a 20 percent rating was assigned. In October 2019, September 2020, and April 2021, the Board remanded the case to the agency of original jurisdiction (AOJ) for further development of the claims. The TDIU claim was added to the appeal in April 2021 because such a claim is part of an increased rating claim when it is asserted by the Veteran or raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). After additional development, a September 2021 rating decision granted service connection for right knee patellar instability and left knee patellar instability, each assigned a 10 percent rating (under 38 C.F.R. § 4.71a, Code 5257), effective June 9, 2021. In November 2021, the Veteran filed a Higher-Level Review (HLR) form (VA Form 20-0996), requesting the VA to reconsider its September 2021 rating decision; he specifically argued that an effective date prior to June 9, 2021 was warranted. The AOJ has accepted the Veteran's desire to opt-in to the modernized review system (i.e., the relatively new statutory framework for claims and appeals processing under the Appeals Modernization Act (AMA)) from the legacy system, with regard to the specific matters decided in the September 2021 rating decision. Therefore, the issue of entitlement to a rating under Code 5257, pertaining to instability of the right and left knees, is no longer before the Board for appellate consideration in the legacy review system, and the Board will proceed herein to consider the propriety of the Veteran's bilateral knee ratings under other relevant criteria. The issue of entitlement to service connection for sleep impairment as secondary to the service-connected right and left knee disabilities has been raised by the Veteran in a December 2019 statement ("I have sleep issues due to [knee] pain") but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over it, and entitlement to secondary service connection for a sleep impairment disability is referred to the AOJ for appropriate action. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For the entire period of the appeal (beginning up until one year prior to the filing of the claim in November 2014), and not considering the period of temporary total convalescent rating for the right knee from June 14, 2019 to October 1, 2019, the Veteran's knee disabilities were rated 20 percent for the right knee under 38 C.F.R. § 4.71a, Codes 5020-5260 and 10 percent for the left knee under 38 C.F.R. § 4.71a, Code 5260. [Hyphenated codes are used when a rating under one code requires use of an additional code to identify the basis for the evaluation.] The issue before the Board is whether he is entitled to higher and/or separate compensable ratings for each knee disability. Under Code 5010, arthritis due to trauma, substantiated by X-ray, is rated as degenerative arthritis. Under Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined not added under Code 5003; limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Under Code 5020, synovitis is rated based on limitation of motion of the affected part, as degenerative arthritis. Limitation of flexion of a leg to 60 degrees is rated 0 percent; flexion limited to 45 degrees is rated 10 percent; flexion limited to 30 degrees is rated 20 percent; and flexion limited to 15 degrees is rated (a maximum) 30 percent. Code 5260. Under Code 5261, limitation of extension of a leg at 5 degrees is rated 0 percent; extension limited at 10 degrees is rated 10 percent; extension limited at 15 degrees is rated 20 percent; extension limited at 20 degrees is rated 30 percent; extension limited at 30 degrees is rated 40 percent; and extension limited at 45 degrees is rated (a maximum) 50 percent. 38 C.F.R. § 4.71a. Normal or full range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. 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 § 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 U.S. Court of Appeals for Veterans Claims (CAVC) 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 CAVC 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. Separate ratings for each knee joint may be assigned for both limitation of flexion and limitation of extension. VAOPGCPREC 9-04 (September 17, 2004). Other applicable criteria pertain to cartilage impairment. Semilunar, dislocated cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Code 5258. Removal of semilunar cartilage that remains symptomatic warrants a 10 percent rating. 38 C.F.R. § 4.71a, Code 5259. Consideration of other diagnostic codes for rating knee disability (5256, 5262, 5263) is not warranted here because the Veteran's left and right knee disabilities are not shown to have included the pathology or impairment required in the criteria in those Codes (specifically, ankylosis, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. During the pendency of the appeal, the schedular rating criteria for evaluating disabilities of the musculoskeletal system under 38 C.F.R. § 4.71a, including the knee, were amended, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). In this case, the pertinent revisions involve changes to Code 5003 and 5010. Under revised Code 5003, degenerative arthritis, other than post-traumatic, the criteria remain the same. Under revised Code 5010, post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint; and if there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. In other words, the pertinent rating criteria remain essentially unchanged. 1., 2. Entitlement to a rating in excess of 20 percent for right knee patellofemoral pain syndrome with symptomatic chondromalacia of the patella and synovitis, status post arthroscopic resection, and to a rating in excess of 10 percent for left knee patellofemoral pain syndrome The Veteran contends that he is entitled to a higher rating for each knee disability, mainly on the basis of daily knee joint pain and its effects. [This decision is not addressing knee instability.] He indicated in a March 2016 notice of disagreement statement that he experienced locking of the knees after driving his car. In an August 2016 substantive appeal statement, he asserted that his right knee locked daily while driving, sitting on a sofa, or upon exiting a bathtub. After applying the governing law to the relevant facts in the record, the Board finds that ratings higher than 20 percent and 10 percent for the right and left knee disabilities, respectively, are not warranted. For the period of review, the pertinent records include VA and private treatment reports, numerous reports of VA examinations (in March 2015, February 2017, August 2018, August 2019, November 2019, January 2021, and June 2021), and records from the Social Security Administration (SSA). His general symptom complaints during this period consisted of pain, locking, grinding, tenderness, swelling, limitation of motion, and weakness. He regularly used knee braces and a cane for ambulation (and to assist in balance), and his right knee appeared to have more severe impairment than the left knee. He reported flare-ups that placed further limitations on his work performance and workload, as he noted on VA examination in March 2015. He generally asserted that his knees were getting progressively worse over time, as noted on VA examinations. This observation is reflected in the restrictions in knee movement, as shown on examinations, where the greatest measured/estimated limitations with consideration of pain, weakness, fatigability, and lack of endurance on observed repeated use, repeated use over time, and flare-ups were as follows, in terms of right/left knee extension/flexion, respectively: 0 to 125 degrees/0 to 130 degrees in March 2015; 0 to 120 degrees/0 to 125 degrees in February 2017; 0 to 135 degrees/0 to 140 degrees in August 2018; unable to test accurately due to recent surgery/0 to 135 degrees in August 2019; 0 to 110 degrees/0 to 120 degrees in November 2019; 0 to 70 degrees/0 to 70 degrees in January 2021; and 0 to 40 degrees/0 to 40 degrees in June 2021. Also, the DBQ completed by his private physician in November 2019 noted range of motion of 0 to 110 degrees in the right knee and normal in the left knee, and a physical examination for SSA purposes in February 2020 noted flexion to 120 degrees in the right knee and to 130 degrees in the left knee. VA and private treatment records do not show findings of more restricted range of motion than those on June 2021 VA examination. The knee examinations also show the Veteran did not have any ankylosis, and on strength testing, the knees were most often found to be 5/5 (normal) and only occasionally 4/5. Further, on November 2019 VA examination, he was observed to stand from a sitting position and ambulate down hallways without antalgic gait or need of assistance, and on the June 2021 VA examination, he needed a cane to stand from a sitting position because he was unstable. In applying the limitation-of-motion codes to the evidence, the Veteran's greatest right and left knee limitation of motion was from 0 degrees of extension to 40 degrees of flexion, which does not meet the criteria for a higher rating under Code 5261 (for extension) or Code 5260 (for flexion). Such findings were made on the June 2021 examination and represent, by a substantial margin, the Veteran's most restricted knee movement to date. Nevertheless, his flexion limitation would have to approximate 15 degrees in the right knee and 30 degrees in the left knee to justify an increased rating, but such limitation is not shown. Further, his right and left knee limitation of extension would have to approximate 10 degrees to meet the criteria for a 10 percent rating, but such limitation is not shown. Therefore, under both limitation of motion codes, the evidence does not show that a higher rating is warranted for either knee. Significantly, the range of motion findings on the June 2021 examination contemplated the functional abilities of the knees during flare-ups and with repeated use over time. (Without such consideration, his knee motion would be less restricted, at 0 degrees of extension to 70 degrees of flexion.) Given the Veteran's complaints of worsening knee function over the years, the findings on the June 2021 VA examination likely reveal his knees at their most severe level of impairment. Thus, it would be pointless to seek a retroactive medical opinion for those instances on past examinations where there was no estimate on the Veteran's limitation of flexion/extension during flare-ups (as no examination was conducted during a flare-up) and repeated use over time. Knee joint pain is a principal symptom of his bilateral knee disabilities, but the objective findings as discussed above do not show that pain actually limited knee motion to the extent that he would meet the criteria for a higher rating for limitation of flexion and/or limitation of extension under Codes 5260 and 5261. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA examiners in 2015, 2017, 2018, 2019, and 2021, collectively, noted the Veteran's various complaints such as pain and locking of the knee and, when observed, remarked on how pain (and any fatigue, weakness, lack of endurance, or incoordination) affected range of motion, including on observed repetitive use and during any repetitive use over time and flare-ups. In response to the terms of the JMR of July 2019, in which the CAVC noted deficiencies in a prior VA examination in regard to the Veteran's functional abilities of his knees on repeated use over time, additional VA examinations were conducted in 2019 and 2021 when the examiner furnished estimates of the further reductions in range of motion during the Veteran's repeated use of the knees over time and during flare-ups. The maximum restrictions on flexion and extension, as clinically observed and as estimated based on a review of the file and the Veteran's complaints, have been recounted above. Thus, the assignment of a disability rating has considered not only the Veteran's demonstrated range of motion on physical examination of the knee, but also his functional loss due to pain (or weakness, fatigability, incoordination, or pain on movement) on repeated use over time and during flare-ups. Even with consideration of 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca, the record does not present a basis for the assignment of a higher rating for the right and left knees under the limitation of motion codes. The Board turns to the criteria pertaining to cartilage impairment under Codes 5258 and 5259. The Veteran's right knee chondromalacia of the patella contemplates cartilage injury under the knee cap. A July 2018 MRI of the right knee showed chondromalacia of the medial compartment with chondral defect but was otherwise unremarkable. A private February 2019 MRI of both knees showed that there was early (on right) and mild (on left) patellofemoral osteoarthrosis with articular cartilage fissuring in the central trochlea of both knees, as well as small joint effusion. Most VA examiners indicated that the Veteran did not have a meniscal condition, although the June 2021 examiner noted a meniscal tear shown by MRI (he did not specify which MRI but referenced the July 2018 MRI). In any case, there is no objective evidence of a meniscal injury confirmed by MRI, and the Veteran's right knee surgeries in 2008, with resection of medial plica, and in June 2019, with an intraosseous bioplasty and excision of synovial tissue, did not involve the meniscus. In short, the evidence does not show removal or dislocation of semilunar (meniscal) cartilage, which is contemplated by Codes 5258 and 5259. Therefore, the Board finds that a separate rating under Code 5258 or 5259 is not appropriate given the facts in this case. Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Board also notes that VA examiners found objective evidence of crepitus, in connection with range of motion testing. This audible sound is a sign indicating the rubbing together of the dry synovial surfaces of joints (see Dorland's Illustrated Medical Dictionary 429 (32nd ed. 2012)). It is not shown to be a separately disabling symptom. The Board has considered the Veteran's statements regarding locking of the knees (particularly the right knee) after driving distances and other activities. Also, in discussing both knees on VA examinations and during clinical treatment visits, he complained of such symptoms as pain, locking, grinding, tenderness, swelling, limitation of motion, and weakness. Although he is competent to describe such symptoms, see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of personal knowledge), the Veteran is not competent to state that they are indicative of a meniscal injury, as is contemplated by the relevant rating criteria, or to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of his knee disability has been furnished by the medical providers who examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings, as provided in the examination reports and in the clinical treatment records, address the impact of the Veteran's right and left knee disabilities on his functioning and the applicable criteria under which his disabilities are rated, including the estimated limitation of motion of the knee after repeated use over time and during flare-ups. For example, after acknowledging his report of symptoms to include locking (or "feeling of catching" as reported on the March 2015 VA examination), the examiners did not equate it to ankylosis. The Board finds these records to be more probative of the overall limitations than the Veteran's subjective reports that suggest he may have increased symptomatology. The Board observes further that the Veteran's opinions and observations alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a, with respect to determining the severity of his knee disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 38 C.F.R. § 3.159 (a)(1) and (2). Determining the severity of the disability is a medical question that must be addressed by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As discussed above, the competent medical evidence of record does not support a rating higher than those currently assigned. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claims for ratings in excess of 20 percent for the right knee disability and in excess of 10 percent for the left knee disability. In denying such ratings, 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. The Board notes, once again, that this decision did not address the manifestation of instability of the knees, for which the Veteran was awarded service connection and separate ratings in a September 2021 rating decision. He expressed disagreement with the effective date of those ratings and, due to the filing of his HLR request in November 2021, the AOJ will be reconsidering its decision on that issue under the AMA appeal process. Finally, the Board observes that in a December 2019 statement the Veteran claims that, with the November 2019 VA examiner, he talked "extensively about lack of sleep" and sleep issues that were due to knee pain, but that the examiner did not include his complaint in the examination report. Thus, the record suggests the Veteran experiences symptoms related to his knee disabilities that are outside the scope of the schedular rating criteria for the knee, to include sleep impairment. The Board will not consider an extraschedular rating for potential sleep impairment because such a manifestation may warrant compensation through other aspects of the rating schedule, namely, secondary service connection for a disability manifested by sleep impairment. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). However, at this juncture, the record lacks medical evidence to support a relationship between the knee disabilities and a sleep impairment, and the AOJ has not considered/addressed the Veteran's assertions regarding his sleep issues. As noted in the Introduction, this matter is referred for further action by the AOJ. 3. Entitlement to a TDIU rating. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Without regard to the period (June 14, 2019 to October 1, 2019) when the Veteran was in receipt of a temporary total rating under 38 C.F.R. § 4.30, for knee surgery requiring convalescence, his service-connected disabilities consisted of right knee patellofemoral pain syndrome, rated 20 percent; left knee patellofemoral pain syndrome, rated 10 percent; right knee patellar instability, rated 10 percent from June 9, 2021; left knee patellar instability, rated 10 percent from June 9, 2021; and right knee surgical scars, rated 0 percent from August 8, 2018. Under 38 C.F.R. § 4.25, the combined rating was 30 percent before June 9, 2021 and 50 percent from that date. Such ratings do not meet the threshold minimum schedular rating requirement for a TDIU rating under 38 C.F.R. § 4.16(a). In other words, he did not have a single service-connected disability rated 60 percent or more, and the combined schedular rating for service-connected disabilities was not 70 percent or more. Accordingly, a schedular TDIU rating is not warranted. Where the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The matter is referred to the Director, Compensation Service, for extraschedular consideration in the first instance. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). See also Faust v. West, 13 Vet. App. 342, 356 (2000). Marginal employment (for purposes of 38 C.F.R. § 4.16) generally shall be deemed to exist when a veteran's earned annual income does not exceed the poverty threshold for one person, as established by the U.S. Department of Commerce, Bureau of the Census. 38 C.F.R. § 4.16(a). Substantially gainful employment contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person," and the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A(d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). Whether service-connected disabilities render a veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care providers. For a veteran to prevail on a claim for TDIU, the record must reflect circumstances that place the veteran's case in a different category than other veterans with an equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In a September 2018 rating decision and September 2021 supplemental statement of the case, the AOJ acknowledged that the Veteran failed to meet the percentage standards set forth in 38 C.F.R. § 4.16(a) and considered whether to refer the case to the Director, Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). As it determined that the evidence did not tend to show the Veteran was unemployable by reason of service-connected disabilities, the AOJ found that the referral was not warranted. The Board likewise agrees. On his August 2018 TDIU application, the Veteran indicated his knee disabilities prevented him from substantially gainful employment. He stated he last worked full-time in June 2017, when he became too disabled to work. He had worked as a community services counselor since May 2013. He reported that he has a college education (in theology) and training as a barber. In a September 2018 statement, his former employer indicated he worked as a "skills trainer" and was employed full time until June 2017; a reason for his termination was not provided. In a September 2018 statement, the Veteran stated he was "released" from his job which required driving over 500 miles a week and caused him too much knee pain due to missing so many days on account of his service-connected knee disabilities. Medical records dated after he left his full-time job in June 2017 show his bilateral knee disabilities would impact functioning but not to the extent that he would be unable to secure and maintain gainful employment. An August 2018 VA examiner considered the Veteran's description of pain with any motion or use of the knee and concluded that, in view of his objective imaging studies and history, he was "most suitable for sedentary functions" and occupations. She felt that he could tolerate employment that did not require strenuous use of the knees such as repeated squatting, kneeling, heavy lifting with the knees, climbing or descending stairs or walking on uneven ground. On a November 2019 Disability Benefits Questionnaire for knees, the Veteran's private physician, S.N., M.D., indicated that the impact of the Veteran's flare-ups on the function of his knees was that he was unable to stand over two hours (and therefore could not work as a barber) and he was unable to drive (and therefore could not counsel "in the usual fashion"). While the Veteran's former job of counseling necessitated traveling long distances every week, which seems to be the reference made by Dr. S.N., it is not shown that driving such distances was a requirement to function in all types of counseling jobs. Later in November 2019, a VA examiner found the Veteran's knees would impair tasks that require prolonged standing, descending stairs, and crouching at the knees, and that he would need rest breaks in such situations. However, the Veteran would not be impaired with more sedentary tasks. The VA examiner in June 2021 stated the Veteran should avoid employment or vocations that required prolonged standing or walking or weight-bearing ambulation, and should also be accommodated with the use of a chair as needed while working ideally, a job where he could work at a desk rather than a job requiring some exertion or labor (e.g., stocking items in a warehouse or in construction as a laborer). The VA examiner in June 2021 found that in terms of the Veteran's ability to perform any type of occupational task, he would not be able to sit or stand for a long time or crouch/bend down, and he would need frequent stops while driving long distances. Such opinions addressing the Veteran's capacity to function do not suggest he would be unemployable due to his knee disabilities. Rather, they express he retains ability to function in various environments but with certain accommodations or restrictions on mobility, so long as the employment involved light to sedentary (that can be done seated or primarily seated with option to stand) tasks. Given his education and previous work experience in such sedentary position of counseling (, it is not shown he would be unable to perform work in his previous occupational field, provided it did not require driving long distances as had his most recent job. The SSA records provide further evidence against his TDIU claim. They show that in August 2020 the Veteran's initial claim for disability benefits was denied, and that in December 2020 it was denied again on reconsideration. He claimed he was unable to work due to pain and limited mobility issues, and he reported he was unable to counsel in the "usual fashion" because he was unable to drive. (It is also noted that on a February 2020 examination for SSA purposes, the Veteran also indicated he was unable to return to work due to reported psychiatric/cognitive disorders.) After examinations in July 2020 and December 2020, which included physical residual functional capacity (RFC) assessments by medical personnel, it was determined that the Veteran was not disabled and that based on the job description he performed in the past as a "social worker," there was no significant health reason why he would be unable to do this type of work. The RFC in December 2020, for example, indicated that the Veteran had exertional limitations (in terms of his endurance in standing/walking (4 hours), sitting (more than 6 hours on a sustained basis in an 8-hour workday), stooping/kneeling/crouching (frequent limitations)). Further, his range of motion of the knees was somewhat limited: from 0 degrees extension to 120 degrees flexion in the right knee and from 0 degrees extension to 130 degrees flexion in the left knee. Nevertheless, the evaluator found that he had the RFC to perform his past relevant work in the area of social work, which was indicated to be a sedentary occupation. The disability picture presented by the record is one that, in the Board's judgment, does not show the Veteran's knee symptoms have prevented his participation in substantially gainful employment during the period for consideration. He has a college education and held a counseling/social work job for several years before he left the position in June 2017 due to mobility issues (inability to drive the long distances required by his job weekly). The determination by the SSA in December 2020 was that he retained the functional ability to perform his previous type of work. In the Board's view, it is not unreasonable to believe the Veteran could obtain similar work in the field of counseling/social work that did not require such weekly travel. (He has not indicated whether he tried to obtain similar work since June 2017.) Also, the medical examination reports, with references to the impact of his knee disabilities on his ability to work, do not show he would be precluded from his past type of occupation in the counseling/social work sphere, particularly as it is primarily sedentary (can be done seated with optional, not prolonged, standing). Based on the totality of the evidence, the Board is not persuaded that for the period on appeal the Veteran was unable to obtain and maintain a substantially gainful occupation due to his service-connected disabilities. Thus, the particular circumstances of this case do not justify referral to the VA Director, Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). As the preponderance of the evidence is against the claim, the benefit of the doubt standard of proof does not apply (38 U.S.C. § 5107(b)), and the appeal in the matter must be denied. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.