Citation Nr: 21073665 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-17 043 DATE: December 9, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to April 18, 2017, for a lumbar spine disability is denied. Entitlement to a rating in excess of 20 percent from April 18, 2017, for a lumbar spine disability is denied. Entitlement to a rating in excess of 10 percent prior to April 29, 2021, for patellofemoral pain syndrome of the right knee is denied. Entitlement to a rating in excess of 20 percent from April 29, 2021, for patellofemoral pain syndrome of the right knee is denied. Entitlement to a rating in excess of 10 percent prior to April 29, 2021, for left knee arthritis is denied. Entitlement to a rating in excess of 20 percent from April 29, 2021, for left knee arthritis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective May 19, 2017. FINDINGS OF FACT 1. Prior to April 18, 2017, the lumbar spine disability does not result in abnormal gait or spinal contour, forward flexion not greater than 60 degrees, or combined range of motion not greater than 120 degrees. 2. From April 18, 2017, the lumbar spine disability does not result in flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 3. Prior to April 29, 2021, the right and left knee disabilities are not manifested by motion limited beyond 10 degrees extension or 55 degrees flexion and from April 29, 2021, the disabilities are not manifested by more limited beyond 15 degrees extension or 90 degrees flexion. 4. The Veteran's service-connected disabilities resulted in unemployability as of May 19, 2017; prior to May 19, 2017, the Veteran was employed. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to April 18, 2017, and 20 percent thereafter for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a Diagnostic Code 5237. 2. The criteria for a rating in excess of 10 percent prior to April 29, 2021, and 20 percent thereafter for patellofemoral pain syndrome of the right knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a Diagnostic Code 5003, 5261. 3. The criteria for a rating in excess of 10 percent prior to April 29, 2021, and 20 percent thereafter for left knee arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a Diagnostic Code 5003, 5261. 4. The criteria for a TDIU effective May 19, 2017, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1999 to November 2003. In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge via videoconference. A transcript of the proceeding is of record. This matter was previously before the Board in March 2021. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. 38 C.F.R. § 4.59 provides for a minimum 10 percent rating for painful, unstable, or malaligned joints, including for residuals of injuries in non-arthritis contexts. Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Moreover, with respect to all service-connected joint disorders, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding that, to adequately portray the functional loss of musculoskeletal disabilities, a medical examination must "express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time"). However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2017); Johnson v. Brown, 9 Vet. App. 7 (1996). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 1. Lumbar spine disability A September 2014 VA treatment record indicates that gait was impaired. However, concurrent treatment records reveal histories of severe pain in the knees. The Veteran also reported "suffering" from low back pain "a great deal." An October 2014 VA examination record reveals the Veteran's history of near-constant pain. The examiner reported that despite the Veteran's history of severe back pain, there were no significant findings in the treatment record indicating any worsening of the lumbar spine disability. The Veteran reported flares with pain up to 7/10. Range of motion testing revealed flexion to 70 degrees, extension to 15 degrees, lateral flexion to 30 degrees or greater bilaterally, and rotation to 30 degrees or greater bilaterally. There was pain with end range of flexion and extension. There was no change in range of motion after repetition. There was no localized tenderness, spasm, or guarding. Motor strength was 5/5, except with left knee extension where it was 4/5. There was no ankylosis. Deep tendon reflexes were 2+, and sensation was normal. The Veteran reported mild intermittent radicular pain in the right lower extremity and moderate intermittent pain in the left lower extremity. The examiner determined nerve roots were not affected. The Veteran did not have intervertebral disc syndrome. The examiner reported that there was no noted radiculopathy or related neurological findings despite the history of radicular symptoms. The examiner added that although the decreased range of motion was reportedly due to pain, poor effort could not be ruled out. The record reveals diagnosis of lumbar strain, minimal limitation. A December 2014 VA treatment record reports that gait was normal. A March 2015 VA record reveals the finding of normal gait. An August 2015 VA treatment record reveals the Veteran's history of "especially severe" back pain. The record notes that gait was normal. An October 7, 2015, VA treatment record reveals the Veteran's history of back pain. The record noted that gait was slow and guarded but the Veteran ambulated without assistance. The Veteran reported an exacerbation of pain to 9/10 for three days. A subsequent October 7, 2015 VA treatment records reveals the Veteran's history of low back pain and spasm and pain "shooting" down the left leg for three days. He also reported intermittent giving out of the left knee. Gait was antalgic. A subsequent October 2015 VA treatment record reveals the Veteran's history of worsening back spasm over the previous two months. A November 2015 VA telephone advice record reveals the Veteran's history of chronic lower back pain. The Veteran reported that he had fallen due to severe leg pain and numbness and could not get up for three hours. He reported that he had difficulty walking and needed a cane. The Veteran also reported spasm. The VA triage record reveals the Veteran's history of a bad back spasm that morning and a history of spasm several times per week for the previous few months. The record reports that gait was normal and that the Veteran did not use an ambulatory aid. A June 2016 private treatment record reveals the Veteran's history of pain everywhere after a motorcycle accident. Examination revealed normal reflexes, sensation, and strength in the lower extremities. The low back was held "somewhat stiff," but the Veteran had "good" motion and mobility. A subsequent June 2016 private treatment record reveals the Veteran's history of worse pain down the back and leg. Examination revealed intact neurological findings though there were "some blunted reflexes." January, April, and December 2016 VA treatment records report that gait was normal. A February 2017 VA treatment record reports that gait was normal. An April 2017 VA examination record reveals the Veteran's history of sharp lower back pain progressing to the thighs and legs with a tingling sensation. He reported flares of intense back pain limiting ability to bear weight and walk two to three times per month that last for several hours. Testing revealed flexion to 45 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 25 degrees bilaterally. There was mild pain with motion. There was no additional loss after repetition. The examiner was unable to quantify the effect of repeated use over time or flares on range of motion. The Veteran had spasm and localized tenderness, but they did not result in abnormal gait or spinal contour. Motor strength was 4/5. There was no atrophy. Deep tendon reflexes were 1+. Sensation was intact. Straight leg raise was negative. The Veteran reported mild pain and paresthesias and/or dysesthesias in the lower extremities. There was no ankylosis. The examiner estimated that the Veteran had mild radiculopathies involving the sciatic nerves. The Veteran did not have intervertebral disc syndrome. The Veteran reported constant use of a cane. The examiner stated that occupational functioning would be affected due to lack of endurance and weakness that interfered with prolonged walking, standing, or sitting and lifting and carrying objects. An October 2017 VA treatment record reports that the Veteran's spine had normal inspection and palpation. A July 2019 VA treatment record reveals the Veteran's history of low back pain, for which he received emergency treatment when the pain is too great. An August 2019 VA treatment record reveals the Veteran's history of increased back pain since a motor vehicle accident in April. He reported radiating pain down the right leg intermittently. The record reports that flexion was limited by 60 percent, extension was limited by 75 percent, left side glide limited by 50 percent, and right side glide limited by 75 percent. A September 2019 VA treatment record reports that flexion was limited by 60 percent, extension was limited by 75 percent, left side glide limited by 50 percent, and right side glide limited by 75 percent. A January 2020 VA examination record reveals the Veteran's history of low back pain. He reported that breathing too hard caused excruciating pain and that he could not eat "a lot" because it put pressure on his back. He reported that he had difficulty bending, standing, and walking and that laying down caused increased pain. He reported flares of shooting pain when he moves "too fast." He reported that the pain kept him from sitting, standing, moving too fast, squatting, reaching above the head, using the bathroom, and picking up his child. Range of motion testing revealed flexion to 43 degrees, extension to 19 degrees, right lateral flexion to 12 degrees, left lateral flexion to 17 degrees, right lateral rotation to 13 degrees, and left lateral rotation to 15 degrees. There was pain with motion but not on weight-bearing. There was no loss of motion after repetition. The examiner estimated that range of motion would be the same after repeated use over time and with flares. There was no guarding or spasm. There was not ankylosis. There was not intervertebral disc syndrome. The examiner stated that the low back disability would affect occupational functioning because of decreased ability to tolerate prolonged sitting, standing, and walking. An April 2021 VA examination record reveals the Veteran's history of low back pain. He reported flares from overuse. He explained that he has flares a few times per week that last from a few minutes to a few hours and that are associated with shooting radicular pain. He reported that the flares are moderate and were associated with loss of at least five degrees of motion. The Veteran reported are his low back disability results in difficulty walking long distance or standing long periods of time, inability to run, and difficulty lifting heavy objects. Active and passive range of motion testing revealed flexion to 50 degrees, extension to 25 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 20 degrees bilaterally. There was no change in range of motion after repetition. The examiner estimated that repeated use over time and flares would result in additional limitation of flexion to 45 degrees and extension to 20 degrees. There was pain with motion and weight-bearing. There was evidence of localized tenderness and spasm, and the spasm resulted in abnormal gait or spinal contour. The examiner explained that the Veteran walked with a limp due to the lumbar spine disability and radiculopathy. There was not ankylosis of the spine or intervertebral disc syndrome. Disabilities of the thoracolumbar spine are rated under a General Rating Formula (Formula). 38 C.F.R. § 4.71a. The Formula ratings apply with or without symptoms such as pain, stiffness, or aching. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. The Formula provides for a separate rating for any associated objective neurologic impairment. The recent amendments did not alter the Formula. The amendment added that Diagnostic Code 5242 should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root and that Diagnostic Code 5242 should be assigned for all other disc diagnoses. The lumbar spine disability is rated at 10 percent prior to April 18, 2017. After review of the evidence, the Board finds a rating greater than 10 percent is not warranted at any point during this period of the claim for functional impairment. There is no evidence, to include history, of intervertebral disc syndrome or incapacitating episodes, as defined by VA. Range of motion testing revealed forward flexion to 70 degrees and combined range of motion to 205 degrees, even after repetitive use testing, and "good" range of motion, which the Board finds does not suggest motion more restricted than that contemplated by the 10 percent rating criteria. Although the record does not quantify the effect of repeated use over time or flares, the Veteran has not reported range of motion limited beyond that shown during clinical testing during this period. In making this determination, the Board notes that the Veteran reported increased pain but not increased limitation during flares at the 2014 VA examination. The Board notes that the Veteran reported limited ability to walk and bear weight due to flares at his April 2017 VA examination and that clinical testing revealed flexion limited to 45 degrees at that time. Prior records do not reveal similar histories or findings which could suggest the limitations or findings reported on the April 2017 examination record, and the Board notes that the April 2017 VA examination record does not report that the limitations during flares were due to additional limitation of flexion, lateral flexion, extension, or rotation. The Board notes that the record includes histories of spasm during this period. The record does not indicate that the spasm resulted in abnormal gait or spinal contour, however. Gait is predominantly noted to be normal. The October 2015 VA treatment record does report antalgic gait, but the record reports normal inspection of the lumbar spine and notes history of symptomatic left lower extremity and does not attribute the antalgic gait to the reported spasm. The Board finds the notation of antalgic gait is not sufficient to suggest that the reported spasm resulted in abnormal gait in light of the evidence of concurrent lower extremity abnormality. Thus, the Board finds a schedular rating higher than 10 percent is not warranted for the functional impairment at any time during this period. The Board finds a rating greater than 20 percent is not warranted at any time from April 18, 2017, because the probative evidence does not reveal limitation of flexion to at most 30 degrees or ankylosis. There is no evidence of ankylosis or the approximation thereof. The Board finds that the reported limitations of movement so as to prevent fast movement or running and difficulty with movement is not analogous to a prevention of movement that might resemble ankylosis. Furthermore, there is no evidence of flexion limited to fewer than 30 degrees. Notably, at its most limited, flexion still reaches 36 degrees 60 percent limitation of normal flexion as defined by the Formula Note (2) during a period of exacerbated symptoms in June and September 2019 after a motor vehicle accident. Subsequent records reveal findings of a greater range of flexion, and the 2021 VA examiner determined flexion would not be limited to fewer than 30 degrees with a flare or repeated use. The Board has considered whether there is any other schedular basis to assign a separate or higher rating but finds there is no evidence of incapacitating episodes as defined by VA or additional objective neurological deficit associated with the thoracolumbar spine disability which could warrant a separate rating. In making this determination, the Board notes that service connection is already in effect for radiculopathy of each lower extremity. 2. Knee disabilities A July 2014 VA treatment record reports that the Veteran had left knee motion from 0 to 125 degrees and right knee motion from 0 to 116 degrees. An August 2014 VA treatment record reports right knee motion from 0 to 111 degrees and left knee motion from 0 to 115 degrees. Stress test was negative. An October 2014 VA examination record reveals the Veteran's history of increased left knee pain and increased bilateral knee pain after prolonged standing, excessive walking, climbing ladders, or doing other physical activities. The examiner reported that despite the Veteran's complaint of severe pain, there were no significant findings noted during examination. The Veteran denied flares. Testing revealed right knee motion from 0 to 130 degrees with pain at 130 degrees and left knee motion from 0 to 120 degrees with pain from 120 degrees. There was no change in ranges of motion after repetition. There was no pain with palpation. Joint stability tests were normal. The record indicates that during ambulation the Veteran maintained both knees in a slightly flex position and maintained an unusual wide stance while walking but appeared in no apparent difficulty. Examination of the bilateral knee revealed no swelling, no redness, no tenderness and no significant weakness or related instability. The examiner added that although the noted decrease in ranges of motion was due to reported pain, the Veteran's habitus and poor effort could not be ruled out. An October 2015 VA treatment record reveals the Veteran's history that the left knee had been giving out intermittently for three days. The Veteran also reported low back pain, spasm, and radicular pain for three days. The Veteran was noted to have good range of motion in all major joints in the extremities. A January 2016 private treatment record reports that the Veteran had normal range of motion, no edema, and no tenderness. A May 2016 private treatment record reveals the Veteran's history of a motorcycle accident. The record indicates that the Veteran had decreased range of motion due to pain. A May 2016 follow-up private treatment record reports the Veteran had left knee abrasion but full range of motion of the left knee. An April 2017 VA examination record reveals the Veteran's history of bilateral knee pain, swelling, popping, weakness, fatigue, and lack of endurance. He also reported meniscus tear in the left knee. He reported flares that manifest with increased pain and stiffness at night that limit the ability to bear weight or walk for two hours. Testing revealed active and passive motion from 10 to 64 degrees in the right knee and 10 to 62 degrees in the left knee. There was pain with motion and in non-weightbearing. There was no change in range of motion after repetition. The examiner was unable to state whether repeated use over time or flares would affect range of motion. There was no atrophy or ankylosis. There was no history of lateral instability or recurrent subluxation. The Veteran reported bilateral knee swelling. The examiner was unable to perform joint stability testing. The examiner reported that the Veteran had left knee meniscal tear with frequent episodes of pain and effusion. The examiner noted that the knee disabilities would affect occupational functioning due to interference with ability to perform prolonged walking, standing, sitting, bending, lifting, and carrying objects. An August 2017 private treatment record reports that the Veteran had normal range of motion, no edema, and no tenderness. A September 2017 private medical record reports that the Veteran had normal range of motion of the knee. An October 2017 VA treatment record reports that the Veteran had full range of motion, no swelling, and no instability in the knees. An October 2017 private medical record reports that the Veteran had normal gait. The examiner noted that the Veteran was only able to flex his knees 90 degrees when he attempted to squat and rise though he had poor effort. The examiner noted that the Veteran reported use of a cane, which he was not using at the time of examination, and that there was no objective finding on exam that supported the use of a cane. A September 2018 private medical record reports that the Veteran had flexion to 75 degrees bilaterally and full extension. A December 2018 private treatment record reports that the Veteran had normal range of motion and full strength. An April 2019 private treatment record reveals the Veteran's history of injuries, including knee contusion, after a motor vehicle accident. He reported minimal pain to the left knee. The record indicates that the Veteran had normal range of motion and strength. There was no swelling. A May 2019 private treatment record reveals the Veteran's history of bilateral knee pain from a motor vehicle accident four weeks earlier. He reported giving way of the left knee with walking, pain in both knees, and occasional swelling in the right knee. Examination revealed mild tenderness to palpation but no effusion, atrophy, pain, or instability. Active flexion and extension were associated with crepitance and tight hamstrings. The ligaments were stable, strength was full, and McMurray's test was negative. August and September 2019 VA treatment record reveals the Veteran's history that the knees give out and the right knee gives out "often." The record notes that passive range of motion was within normal limits. Varus test was positive in one lower extremity. The record indicates that the signs and symptoms were consistent with reported exacerbation following an April 2019 motor vehicle accident. A February 2020 VA examination record reveals the Veteran's history of bilateral knee pain. He reported that the left knee gives out most. He reported that he has constant pain with standing and can only walk 50 to 75 steps without burning pain. The Veteran reported flares with anything he tried to do. Testing revealed active and passive motion from 0 to 60 degrees in the right knee and 0 to 55 degrees in the left knee. There was pain with motion and weight-bearing. The Veteran reported inability to perform repetitive testing due to pain. The examiner estimated that with repeated use over time the Veteran would have motion from 0 to 60 degrees in the right knee and 0 to 55 degrees in the left knee. The examiner estimated that during flares, the Veteran would have motion from 0 to 50 degrees in the right knee and 0 to 65 degrees in the left knee. There was no atrophy or ankylosis. There was no history of lateral instability or subluxation. Joint stability testing was not performed because the Veteran was unable to perform due to pain. The examiner determined the Veteran did not have a meniscus condition. The examiner added that magnetic resonance imaging revealed normal meniscus bilaterally. The examiner reported that the knee disabilities would result in occupational impairment due to decreased ability to tolerate prolonged standing and walking. An October 2020 VA record reveals the Veteran's history of dislocating his left knee and hip after being hit by a car a week earlier. An April 2021 VA examination record reveals the Veteran's history of daily flares of knee pain of moderate severity. He reported a loss of at least five degrees of range of motion during flares. He reported difficulty walking long distances, difficulty standing or sitting for long period, difficulty climbing stairs and ladders, difficulty bending, and inability to run. He reported effusion and instability of the right knee. Range of motion testing revealed active and passive motion from 10 to 90 degrees bilaterally. There was pain with weight-bearing and with motion. There was no additional loss of motion after repetition. The examiner stated that repeated use over time and flares would limit functional ability and additionally limit extension to 15 degrees (flexion would remain at 90 degrees) in each knee. The record notes that the Veteran walked with a limp. There was no atrophy or ankylosis. There was not patellar instability of the left knee. The examiner noted history of shin splints but reported that the condition was not causing any symptoms and were not a current diagnosis. Each knee disability is rated at 10 percent for painful motion prior to April 29, 2021, and 20 percent for limitation of extension thereafter. The Board has considered whether a higher rating is warranted based on limitation of motion. Flexion of the leg limited to 60 degrees warrants a noncompensable rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that the recent amendments to the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries did not alter the rating criteria for limitation of motion. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). After consideration of the record, the Board finds a rating in excess of 10 percent is not warranted prior to April 29, 2021. Specifically, the Board finds a higher rating is not warranted based on limitation of flexion and/or extension during this period. The reported pain on motion and functional impairment of motion is already contemplated in the rating assigned, and the record consistently reveals motion, and findings about motion after repeated use or during flares, from at least 10 to 55 degrees. The Board acknowledges that the April 2017 VA examiner was unable to quantify the effect of repeated use over time and flares on functional ability though they determined pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time and flares. The 2020 VA examiner made that determination, however, and the Veteran has reported a progressive worsening of his knee symptoms and impairment. The Board finds the 2020 VA examination findings may be applied retroactively without prejudice to the Veteran. In making this determination the Board notes that the 2020 VA examiner's determinations are not inconsistent with the 2017 VA examination record regarding range of motion findings, particularly as the Veteran's range of motion was greater in 2017 than 2020; the history of increasing symptoms and impairment suggests that the subsequent examiners' determinations would, at worst, be an overestimation of the general effect of repeated use over time and flares. The Board further notes that the Veteran did not perform repetitive use testing due to reported pain at the 2020 VA examination. The examiner reported findings about the effect of repeated use on range of motion, however, and the 2021 VA examination record reveals that the Veteran was able to perform repetitive use testing with motion from 10 to 90 degrees. The record during this period also includes range of motion findings during periods of exacerbation. The record is absent any allegation that the 2020 VA examiner's determinations of the effect of repeated use or flares is inaccurate, and the Board finds the VA examiner's determinations as to the effect of repeated use and flares are probative substitute for repetitive use testing. In sum, the Board finds the Veteran's range of motion is too significant to approximate the limitation of extension and/or limitation of flexion needed for a higher rating, even after consideration of repeated use over time and flares. The Board notes that the 2014 VA examination record does not specify passive range of motion and that the examination records do not specify range of motion in and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds no prejudice results from any failure to report range of passive motion or in non-weight bearing. The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Range of motion testing performed for the knees requires standing testing, which is considered to be testing on weight bearing because the Veteran must support the weight of his body while undergoing such testing. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. Similarly, testing on weight bearing would generally produce more restrictive results than testing done without weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing or weight-bearing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. The Board further finds a rating in excess of 20 percent is not warranted based on limitation of motion from April 29, 2021. The reported pain on motion and functional impairment of motion is already contemplated in the rating assigned, and the record reveals the determination that motion would be at most limited from 15 to 90 degrees, during a flare or repeated use. In sum, the Board finds the Veteran's range of motion is too significant to approximate the limitation required for a higher rating based on extension or separate rating based on flexion during this period. The Board has considered whether the either knee disability warrants a higher or separate rating under an alternate diagnostic criteria. Regarding the right knee disability, service connection is separately in effect for instability. That matter is not before the Board in conjunction with this appeal. The record does not suggest that any other rating code is applicable: there is no evidence of meniscal abnormality or malunion or nonunion of the fibula and tibia. The record does include the April 2021 notation of shin splints. A compensable rating is not warranted under the new Diagnostic Code 5262, however, because the examiner noted that treatment was provided for fewer than 12 consecutive months and were acute with no need for diagnosis. Regarding the left knee disability, service connection is separately in effect for status-post meniscectomy with residuals of pain, stiffness, and swelling. That matter is not before the Board in conjunction with this appeal. The record is absent evidence of malunion or nonunion of the fibula and tibia, and although the record includes a finding of shin splints in April 2021, the record indicates that the shin splints resolved with fewer than 12 consecutive months of treatment so a compensable rating is not warranted under the new Diagnostic Code 5262. The record does include history of instability in October 2015 (during a back flare), May and September 2019 (after a motor vehicle accident), and February 2020. The Veteran otherwise denied left knee instability, however, including in April 2021 (where only right knee giving way was noted), and clinical testing is normal for left knee joint stability. The record indicates that the Veteran has had lower extremity weakness and falls from disorders distinct from the left knee disability, such as the low back disability with radiculopathy. In light of the other conditions affecting the lower extremities and the specific consideration of lower extremity weakness in the rating assigned for radiculopathy and the consistently normal clinical finding of stability, the finds a separate rating is not warranted for even slight lateral or patellar instability or subluxation under Diagnostic Code 5257. Thus, the claim for increased rating for the left knee disability is denied. TDIU A TDIU may be assigned if 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 that 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). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Gelb v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). In April 2017, the Veteran submitted a VA form 21-8940 reporting that he still worked full-time in a position that was substantially gainful. A July 2017 VA form 21-4192 from the employer reported on the April 2017 VA form 21-8940 reveals that the Veteran last worked May 18, 2017, and that the Veteran's employment was terminated because he was in violation of the attendance policy and that all available and approved leaves of absence were exhausted. An October 2020 VA form 21-4192 indicates that the Veteran worked as a trainee from February 2018 to March 2018 before he voluntarily abandoned the job stating he would be leaving out of state without notice. Vocational rehabilitation and employment (VRE) records indicate that the Veteran was pursuing a business management degree for many years but discontinued his schooling prior to receiving the degree. Social Security Administration (SSA) records indicate that the Veteran was awarded disability benefits effective February 28, 2017. The award of benefits decision reports that the record did not establish that the Veteran's work after February 28, 2017, was sufficiently remunerative to constitute substantial gainful activity for a length of time that would constitute a successful work attempt. The decision adds that the Veteran was compensated above the substantial gainful activity threshold after February 28, 2017. SSA records indicate that the Veteran reported a disability onset of May 19, 2017. An August 2021 VA form 21-8940 reveals the Veteran's history that he became too disabled to work and last worked full time February 1, 2016. After consideration of the record, the Board finds the Veteran was employed in nonmarginal employment prior to May 19, 2017. The Board notes that the Veteran has provided varying dates as to his last date of full time employment, that the date provided on the August 2021 VA form 21-8940 is contradicted by a statement from the last permanent employer and previously reported last employment dates, and that the Veteran worked temporarily in 2018 before he reportedly abandoned the position due to a move. However, the Veteran reported that he was working in April 2017 and he reported to SSA that his disability onset May 19, 2017, and the last full time long-term employer reported a last date of employment of May 18, 2017. The record indicates that this employment was substantially gainful, as defined by VA, and there is no indication that the employment was in a protected or sheltered environment. The Board acknowledges that the July 2017 VA form 21-4192 from the employer reported on the April 2017 VA form 21-8940 reports that all leave was exhausted. The form does not indicate that this leave occurred solely in 2017, was unpaid, or was otherwise indicative of marginal or protected employment, and the Veteran has not made such allegation. The Board further acknowledges that SSA disability benefits were awarded effective February 28, 2017. The SSA decision found that the work was substantially gainful as defined by SSA after that date, however, and the Board finds the date chosen by SSA is neither dispositive nor persuasive evidence of the last date of employment. Based on the evidence of record, the Board finds the Veteran had nonmarginal employment until May 19, 2017. Thus, a TDIU is not warranted during this period. The Board finds the Veteran has not been employed since May 19, 2017. Although the record indicates that the Veteran worked in 2018, the record indicates that this work was marginal. Thus, it does not preclude entitlement to a TDIU. From May 19, 2017, service connection is in effect for posttraumatic stress disorder, lumbar spine disability, lumbar radiculopathies of each lower extremity, left knee disability, right knee disability, and left knee scar. The Veteran meets the schedular criteria for a TDIU throughout this period. Resolving all doubt in favor of the Veteran, the Board finds the collect Veteran's service-connected disabilities collectively render him unemployable as of May 18, 2017. Notably, although the record suggests that the Veteran might be able to perform sedentary employment in a flexible environment due to the knee and lumbar spine disabilities, the Board finds the collective impact of the orthopedic, neurological, and psychiatric disabilities would render a sedentary position infeasible, particularly given that the Veteran is not in receipt of a post-high school educational degree. Thus, the claim is granted as of this date. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.