Citation Nr: 21075641 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 12-18 871 DATE: December 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to May 27, 2011, the record does not contain a reasonable possibility that the Veteran's service-connected disabilities resulted in an inability to secure or follow substantially gainful employment sufficient to warrant referral for extraschedular consideration, and thus, TDIU benefits are not warranted because the Veteran was not unemployable due to service-connected disabilities during this time period. 2. Since May 27, 2011, the evidence fails to demonstrate that the Veteran's service-connected disabilities resulted in an inability to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1991 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran and his spouse presented testimony on the claim at an April 2013 Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. The law provides that a Veterans Law Judge who conducts a hearing must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (2018); 38 C.F.R. § 20.604 (formerly 20.707 (2018)). In August 2016, the Board sent a letter to the Veteran explaining that the Veterans Law Judge who conducted his hearing was no longer available to participate in the appeal and offered the Veteran the opportunity to request a hearing before a different Veterans Law Judge. The Veteran responded in September 2016 that he did not wish to appear at another Board hearing, and the Veteran has not requested any additional Board hearings following the prior Board remands of the claim. See Quinn v. Wilkie, 31 Vet. App. 284 (2019). The undersigned Veterans Law Judge has been assigned to this case pursuant to 38 C.F.R. § 20.106(b) (formerly 19.3(b) (2018)), and has reviewed and considered the Veteran's April 2013 Board hearing testimony. The Veteran's representative has challenged the adequacy of the May 2020 VA medical opinion addressing the impairments caused by the Veteran's service-connected left knee disability. Similarly, for the reasons discussed below, the Board finds this medical opinion to be inadequate for adjudicative purposes. However, any inadequacies were cured by the subsequent November 2020 and January 2021 VA examinations/medical opinions, which adequately addressed any occupational impairments caused by the Veteran's service-connected left knee disability. Neither the Veteran nor his representative has raised any other issues with VA's duty to assist, VA's duty to notify, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. This claim has been remanded by the Board on several occasions. The Board's review of the electronic claims file reveals that the RO has substantially complied with all previous Board remands, and neither the Veteran nor his representative has alleged otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Entitlement to a TDIU is denied. The Veteran asserts that he has been unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities during the period on appeal. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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, and auditory and visual limitations; 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. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Under 38C.F.R. §4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38C.F.R. §4.16(a). Where a veteran does not meet the schedular TDIU criteria, a total rating may be assigned on an extraschedular basis upon a showing that s/he is unable to obtain or retain substantially gainful employment due solely to service-connected disabilities. 38C.F.R. §4.16(b). The Board is unable to award an extraschedular TDIU in the first instance, and instead must first determine whether referral to VA's Director of Compensation Services is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of a referral is dependent on whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities." See Snider v. McDonough, No. 19-6707, 2021 U.S. App. Vet. Claims LEXIS 2050 at *1-2 (Nov. 19, 2021) (citing Ray, 31 Vet. App. at 66). The evidence demonstrates that the Veteran is a high school graduate, and he did not pursue postsecondary education. During active duty service, the Veteran's military occupational specialty was a supply specialist, where he was responsible for cataloging, maintaining, and distributing inventory and supplies. Following service, he worked for a few months as an environment services worker at a local hospital. His job duties included sanitizing physician offices and polishing floors. Thereafter, the Veteran worked briefly for a company assembling and inspecting automotive parts. From June 1995 to May 1998, the Veteran worked as a lumber yard employee for a furniture company. His duties included loading and unloading lumber, completing forms for account retrieval, verifying and checking inventory of production reports, and filing/retrieving records. From January 1999 to June 1999, the Veteran worked as a mail clerk for a private company, where his primary job duties involved opening and sorting mail and transporting tax documents to the U.S. Post Office. In April 2000, the Veteran began working as a clerk specialist with the state Department of Revenue. His duties included opening, sorting, and distributing mail, data entry, completing reports, and preparing tax documents. The Veteran has not been substantially gainfully employed since he ceased his employment with the Department of Revenue in June 2005. The Veteran reported that his job at the Department of Revenue resulted in an income level of approximately $1569 per month. Based on the above occupational history and educational attainment, the Board finds that the Veteran has the experience, at minimum, to perform sedentary work, which the Board defines as work in an office-like setting, that is primarily performed in the sitting posture, working with computers or electronic equipment, using analytical skills, and completing administrative tasks. See Withers v. Wilkie, 30 Vet. App. 139 (2018); see also Webster's II New College Dictionary 999 (1999) (defining "sedentary" as "[r]equiring or marked by much sitting "). This conclusion is based largely on the job duties performed by the Veteran through his employment at the state Department of Revenue, where his job duties required the use of computers and electronic equipment to open, sort, and distribute mail, and the preparation of reports and tax documents. In documents submitted to the U.S. Social Security Administration (SSA), the Veteran explained that his employment required the use of machines, tools, and equipment; the use of technical knowledge and skills; and the writing and completion of reports. A. Prior to May 27, 2011 The Veteran's combined disability rating was 40 percent prior to May 28, 2009 and 60 percent from May 28, 2009 to May 27, 2011 due to the Veteran's service-connected depressive disorder and left knee disability. For the relevant period prior to May 28, 2009, the Veteran did not meet the schedular TDIU criteria. Likewise, for the period from May 28, 2009 to May 27, 2011, the Veteran did not meet the schedular TDIU criteria, as the combined rating for his two service-connected disabilities did not equal 70 percent or more. The Board has considered whether the Veteran's disabilities could be considered as a single disability under the enumerated circumstances set forth in 38 C.F.R. § 4.16(a). However, the Veteran's disabilities do not affect one or both upper or lower extremities; they do not result from a common etiology or single accident (the left knee disability is etiologically related to an in-service injury, whereas the depression is etiologically related to pain and socioeconomic factors caused by the Veteran's left knee disability); they do not affect a single body system; and they are not both the result of injuries incurred in action or as a prisoner of war. Thus, the Veteran's disabilities do not count as a single disability for the purposes of determining schedular TDIU eligibility. When a veteran does not meet the schedular TDIU criteria, the pertinent inquiry is whether there is sufficient evidence to substantiate a reasonable possibility that the Veteran's service-connected disabilities, alone, precluded the Veteran from securing and following substantially gainful employment, sufficient to refer the matter to VA's Director of Compensation Services for extraschedular TDIU consideration. After a complete review of the record, the Board finds that extraschedular referral is not warranted, as explained below. Having fully reviewed the electronic claims file, the Board finds that the evidence prior to May 27, 2011 does not establish that the Veteran lacked the residual functional capacity to perform substantially gainful employment consistent with his past occupational history and educational attainment. The Veteran attended a VA psychiatric examination in July 2008. The Veteran reported that he and his spouse were separated due to financial problems and his unemployment. His children lived with his spouse. He reported that he had "a lot of friends," suggestive of no social functioning limitations. He stated that he watched television, listened to music, read, and attended church. The Veteran was prescribed an anti-depressant and he reported that it worked well and helped him sleep. Mental status examination showed that the Veteran was clean, neatly groomed, and dressed appropriately; his psychomotor activity was unremarkable; his speech was spontaneous, clear, and coherent; he was friendly, cooperative, and attentive with the VA examiner; he reported back pain and his affect was constricted; his attention was intact; he was oriented to person, time, and place; his thought processes and thought content were unremarkable; he had no delusions; he understood the outcome of his behavior; and his intellect was average. The Veteran reported a mild sleep impairment. He did not have hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, suicidal/homicidal thoughts, or impulse control issues. His remote memory was normal, but recent memory was mildly impaired. The Veteran retained the mental capacity to handle money, pay bills, and manage his financial affairs. The VA examiner opined that the Veteran's mental disorder symptoms were not severe enough to interfere with occupational and social functioning. The Veteran attended a VA examination of the left knee in November 2008. The Veteran reported chronic pain and the use of a cane to assist with ambulation. He could not stand for more than one hour due to left knee pain. The Veteran indicated he was capable of walking more than 14 mile but less than 1 mile due to left knee pain. The Veteran reported that his left knee gave way, but he had no instability, stiffness, weakness, locking episodes, or effusion. The left knee was swollen and tender. The VA examiner stated that the Veteran's left knee disability would result in lack of stamina and pain causing increased absenteeism. The VA examiner stated that the Veteran's left knee disability should not preclude light duty or sedentary employment. The Veteran attended an additional VA psychiatric examination in September 2009. The examiner noted the Veteran's reports that his anti-depressant helped with his mood and reduced the frequency of his nightmares. He reported that his most recent depressive episode was one week prior to the examination and was mild/moderate in nature. The Veteran denied issues with anhedonia, appetite, and suicidal ideations. He stated that he slept 4 to 8 hours per night, with his sleep interrupted by pain. He stated that his energy, concentration, and self-esteem fluctuated. He had no signs of mania. Mental status examination showed that the Veteran was clean, neatly groomed, and casually dressed; his psychomotor, speech, thought processes, and thought content were unremarkable; he was friendly and attentive with the VA examiner; he was oriented to person, time, and place; he described his mood as "OK" and his affect was constricted; he understood the outcome of his behavior; he described mild sleep impairments; his impulse control was fair; and he had no hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, suicidal/homicidal thoughts, or episodes of violence. Recent and remote memory were normal. He retained the mental capacity to handle money, pay bills, and manage his financial affairs. The VA examiner opined that the Veteran's problems with self-esteem and depressed mood were due to his depressive disorder, whereas his reports of concentration deficits could be due to either depression or borderline IQ. The VA examiner opined that the Veteran's mental symptoms were not severe enough to interfere with occupational and social functioning. The Veteran's VA treatment records document consistent psychiatric treatment prior to May 27, 2011, with mental status examination findings that frequently listed the Veteran as alert and oriented, with organized thought processes, intact judgment and insight, and no delusions, hallucinations, or suicidal ideations. Mood varied from euthymic to dysphoric. Memory and concentration were typically described as fair or intact. Sleep impairment was documented, but his nightmares were reduced as a result of anti-depressant treatment. VA psychiatric records from September 2009 stated that the Veteran's anti-depressant medication "has helped with [the Veteran's] ability to cope with stressors, he does not get as agitated easily." VA psychiatric records from March 2010 state that the Veteran was learning to cope with his physical pain. Records from January 2011 demonstrate that the Veteran was adapting well following the death of his grandmother. Regarding the left knee, the Veteran reported chronic pain, but the VA treatment records did not document any explicit functional limitations or physical restrictions that would have precluded sustained sedentary employment in the sitting posture. While the Veteran could not squat or stand/walk for long periods of time, these limitations would not prevent him from performing sedentary employment, where most job duties are performed while sitting and in the non-weightbearing posture. The Veteran submitted forms completed by his VA psychiatrist, Dr. MG, in August 2008 and June 2009. In these forms, Dr. MG stated that the Veteran experienced less anxiety when having minimal contact with others; marked impairment completing work tasks at a consistent pace; marked impairment with attention and concentration for more than brief periods; marked impairment performing production levels expected by most employers; marked impairment in responding appropriately to changes in a work setting; and marked impairment in his ability to behave predictably, reliably, and in an emotionally stable manner. The form defined "marked" as "an impairment that seriously affects the ability to function in a work like setting." When asked to give a basis for her opinion, Dr. MG stated that the Veteran had a low frustration tolerance due to nonservice-connected low back pain, which impacted his mental ability and adaptation. In its December 2016 decision, the Board found these forms probative to the extent that they demonstrated that the Veteran's psychiatric disability resulted in marked impairment in his ability to behave predictably, reliably, and in an emotionally stable manner. The Board found Dr. MG's statement regarding marked concentration and attention deficits to be nonprobative when weighed against Dr. MG's contemporaneous treatment records, which listed the Veteran's thought processes as consistently well-organized, unremarkable or within normal limits. Additionally, the Veteran's memory and concentration were consistently described by Dr. MG as fair or intact. There was no evidence of deficient thinking in Dr. MG's treatment records. The Board also notes that when Dr. MG was asked to provide a basis for her opinion, she cited low frustration tolerance due to constant back pain, affecting the Veteran's mental ability and adaptation. The Board underscores that the Veteran is not service-connected for a low back disability. Overall, the Board does not find the August 2008 and June 2009 forms completed by Dr. MG to be probative in this appeal, as they did not articulate specific psychiatric symptoms that would impact the Veteran's ability to perform production levels or respond to changes in the environment. In fact, Dr. MG's treatment records indicate that the Veteran's prescription anti-depressant medication was helping the Veteran adapt to stressful circumstances and changes in his life. The contemporaneous VA treatment records from Dr. MG indicate that the Veteran was alert and oriented, with intact judgment and insight, and well-organized thought processes. There are no psychiatric treatment records from Dr. MG that show mental health symptoms that would preclude the Veteran from engaging in critical thinking, working a computer, completing simple tasks, adapting to his environment, or communicating effectively on a sustained and persistent basis. The Veteran's VA psychiatric records from prior to May 27, 2011 show that the Veteran maintained the residual mental capacity to perform sedentary employment, consistent with the skills and knowledge obtained through his education and occupational history. In adjudicating this appeal, the Board notes that the Veteran was awarded disability benefits by the SSA due to failed back syndrome and depression. However, SSA determinations are not binding on the Board, and it is the duty of the Board to assess the credibility and weight to be given such evidence. See Washington v. Derwinski, 1 Vet. App. 459, 465-66 (1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (finding that Social Security determinations should be given appropriate consideration and weight in determining to award or deny an appellant TDIU). Here, the Board affords no weight to the SSA's determination, as it applies regulatory criteria separate and distinct from the law governing VA TDIU determinations, and the SSA's decision was based largely in part on physical limitations resulting from the Veteran's nonservice-connected low back disability. The Board has also given consideration to the various lay statements submitted by the Veteran; his spouse; his friend, MS; and various family members and friends. The Board finds the testimony of these individuals to be of limited probative value, as they do not discuss with any specificity how the Veteran's service-connected depressive disorder and left knee disability would preclude him from securing or following all forms of substantially gainful employment consistent with his education and occupational history. Instead, these statements contain generalities regarding the Veteran's symptoms rather than specific functional impairments that could impair employability. Furthermore, the witnesses often talked about symptoms related to the Veteran's nonservice-connected low back disability, which is not relevant to the present appeal. In its November 2011 decision, the Board explained that the general lay statement submitted by the Veteran in November 2007, which was merely signed by a litany of family members and friends, did not serve as competent evidence in this appeal, as the witness' did not explain who they were, what they specifically observed about the Veteran, or how long they knew the Veteran. As there was no way for the Board to ascertain whether each individual had personal knowledge of the facts or circumstances contained in the letter, the evidence was not competent under 38 C.F.R. § 3.159(a)(2). Based on the analysis above, the Board finds there is no reasonable possibility that the Veteran's service-connected depressive disorder and left knee disability have precluded the Veteran from securing and following all forms of substantially gainful employment in the period prior to May 27, 2011. In Snider, 2021 U.S. App Vet. Claims LEXIS 2050 at *19-20, the Court held that in addition to addressing the "reasonable possibility" standard regarding extraschedular referral, the Board must also explain whether the Veteran is unemployable due to his service-connected disabilities. As the lower standard of a "reasonable possibility of unemployability" has not been met, the evidence also necessitates a finding that the higher standard of "unemployability" has not been met. See id. at *20. The medical evidence failed to demonstrate physical limitations caused by the Veteran's service-connected left knee disability and/or mental limitations caused by his service-connected depressive disorder that would have prevented the Veteran's from engaging in substantially gainful employment consistent with his education and prior occupational skill set during the relevant time period. Accordingly, the Veteran's claim shall not be referred for extraschedular consideration, and entitlement to a TDIU prior to May 27, 2011 is denied. B. Since May 27, 2011 The Veteran has satisfied the schedular TDIU criteria since May 27, 2011, when his combined disability rating was 70 percent or greater, with at least one service-connected disability rated at 40 percent or more. However, after a complete review of the electronic claims file, the Board finds that the Veteran's service-connected depressive disorder and left knee disability have not precluded the Veteran from securing or following all forms of substantially gainful employment based on his occupational history and educational attainment for the period since May 27, 2011. During this time frame, the Veteran retained the residual functional capacity to perform sedentary work, to include routine administrative tasks in an office-like setting. At the April 2013 Board hearing, the Veteran described nightmares every two weeks or so and trouble sleeping. He stated that he had one friend, and that he was not violent, although he had occasional outbursts toward people, if they said the wrong thing to him. He also testified regarding anger over his inability to do things he used to be able to do, and he discussed coping mechanisms he used to calm himself during periods of irritation. The Veteran's spouse also testified regarding his irritability and dragging mood, although she stated he was more uplifting around his children. Regarding the left knee, the Veteran testified that it was swollen, that he could not apply pressure to the knee, and he used a walking cane and knee brace for stability and assistance. The Board finds this testimony to be competent and credible as it relays the expressing witness' personal observations and experiences. However, this testimony is of limited evidentiary weight as it did not demonstrate functional impairments so severe that the Veteran would be precluded from performing sedentary employment consistent with the definition set forth in this decision. To support his appeal, the Veteran submitted another form completed by Dr. MG in March 2013. This form indicated that the Veteran had marked impairment in every category of social interaction, and his impairment in the areas of sustained concentration or persistence and adaptation remained unchanged from the June 2009 form. As explained above, the December 2016 Board decision found this document probative only to the extent that it described marked impairment in the Veteran's ability to behave predictably, reliably, and in an emotionally stable manner. Regarding the Veteran's concentration and ability to adapt to his environment, the form was inconsistent with Dr. MG's contemporaneous 2011 to 2013 treatment records, which generally noted fair or intact concentration, well-organized thought processes, and intact judgment and insight. Notably, the March 2013 psychiatric treatment records of Dr. MG contain no reference to concentration impairment or poor adaptability and coping skills, despite completion of the form on the same date. The Board finds the March 2013 form by Dr. MG to be of little probative value given these inconsistencies with the other relevant evidence of record. Regarding the social deficits noted by Dr. MG, these findings are notably absent from her treatment records and were not corroborated at the August 2014 VA examination. The VA examiner cited treatment records from Dr. MG in May 2014, which indicated that the Veteran's medication was improving his mood, he had no self-directed violent thoughts or violent impulses, and he used word puzzles to distract his mind from pain associated with his nonservice-connected low back disability. The Veteran reported that he saw his children mostly on the weekends and during holidays. He stated that he watched television and would occasionally go out to dinner or see a movie with his wife or their children. The VA examiner listed depressed mood, anxiety, and chronic sleep impairment as the Veteran's predominant psychiatric symptoms. The VA examiner explained that the Veteran had felt sad/down for many years, had a feeling of anxiousness/worry, and had chronic trouble sleeping. The VA examiner described the Veteran's symptoms related to dysthymia to be mild in severity. The Veteran attended an additional VA psychiatric examination in February 2018. The Veteran reported that he had meaningful interpersonal relationships with his mother, siblings, daughters, and at least two very close friends. He reported unspecific communication problems with his wife. The VA examiner reviewed the electronic claims file, interviewed the Veteran, and accurately documented the Veteran's medical, educational, occupational, and social history. The VA examiner identified depressed mood, anxiety, and chronic sleep impairment as the Veteran's predominant psychiatric symptoms. The Veteran identified crying spells 3 times per week. He reported sleeping 6 hours per night and described experiencing nightmares. Mental status examination showed the Veteran to be timely and appropriately dressed; his grooming was impeccable; he was oriented to person, place, time, and situation; he was alert and without drowsiness; his concentration was good; he was mild-mannered during the examination; there were no signs of sleep deprivation; his speed was normal; thought processes were logical and goal-directed; there was no evidence of psychosis, delusional beliefs, or suicidal/homicidal ideations; his insight and judgment were good; and there were no major memory deficits. The August 2018 VA psychiatric examiner also completed a social work and industrial survey. The VA examiner stated there would be occupational and social impairment due to mild-to-moderate symptoms of depression, with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The VA examiner stated that the Veteran's psychiatric symptoms were controlled by medication, and he had meaningful relationships with family members and close friends. The Veteran's VA treatment records show that the Veteran was seen by VA mental health providers on a routine basis since May 27, 2011. Mental status examinations generally showed the Veteran to be alert and oriented, with well-organized thought processes and intact judgment/insight, and no suicidal ideations, delusions, hallucinations, or gross cognitive defects. The records showed occasional dips in the Veteran's mood, although his medication typically kept his mood stable. There were no indications of cognitive decline, severe communication problems, violent tendencies, memory loss, or any other mental impairments that would preclude the performance of sedentary clerical work. For the period since May 27, 2011, the Board finds no probative evidence establishing that the Veteran's service-connected depressive disorder resulted in mental impairments that would have precluded the Veteran from engaging in sedentary employment in an office-like setting, completing simple tasks, with limited interaction with people and/or the general public. The Veteran has consistently demonstrated normal cognition and communication patterns. While he occasionally described himself as irritable, he testified at the April 2013 Board hearing that this is displayed only when individuals say the wrong thing to him. He has maintained successful familial relationships and friendships, despite his psychiatric impairments. There is no probative evidence that his depression negatively and severely impacted his analytical and critical thinking skills, his ability to adapt to his environment, his memory, or his capacity to use computers or other office equipment. The Veteran has experience working in an administrative position in an office-like setting, and the probative evidence since May 27, 2011 demonstrates that he has maintained the mental acuity and interpersonal skills necessary to perform sedentary work, completing simple clerical tasks away from the general public, with necessary breaks. This type of employment is widely available in the national economy. Having addressed the Veteran's service-connected psychiatric disability and its related impairments, the Board turns to the issue of whether the Veteran's service-connected left knee disability has impacted his ability to secure and follow substantially gainful employment since May 27, 2011. The evidence regarding the functional impairment caused by the Veteran's service-connected left knee disability does not establish that the Veteran would be physically incapable of sustained sedentary employment, which requires little standing, sitting, or squatting, and is primarily performed in the sitting posture. The Veteran was afforded a VA examination of the left knee in July 2011. The VA examiner conducted an overview of the Veteran's relevant medical history and an in-person physical examination. The VA examiner documented the Veteran's reports of left knee instability, giving way, pain, stiffness, weakness, incoordination, and decreased speed of joint motion. The Veteran's knee was manifested by tenderness and swelling. The Veteran was able to stand for 15 to 30 minutes and walk up to 14 mile. He used a cane and knee brace to assist with ambulation. Regarding impact of the Veteran's left knee disability on occupational activities, the VA examiner stated that the Veteran would have decreased mobility, problems with lifting and carrying, decreased strength, and lower extremity pain resulting in increased absenteeism. The VA examiner opined that sedentary occupations would not be precluded. The Veteran attended an additional VA examination of the left knee in August 2014. The VA examiner reviewed the electronic claims file and physically examined the Veteran. The VA examiner opined that the Veteran's left knee disability resulted in less movement than normal. The VA examiner explained that the Veteran's subjective complaints were out of proportion to the objective examination findings, and the Veteran displayed a poor effort during physical testing. The VA examiner noted that the Veteran regularly used a cane and knee support brace. The VA examiner opined that the Veteran's left knee disability should not preclude light duty or sedentary employment. The Veteran attended a VA examination of the left knee in February 2018. The VA examiner reviewed the electronic claims file and conducted an in-person examination. The VA examiner found no evidence of a current disability and stated that the Veteran's in-service left knee injury was fully resolved. The VA examiner opined that since no left knee disability was present, there would be no occupational restrictions. The Veteran's increased rating claim for the left knee was adjudicated in a May 2018 Board decision, but entitlement to a TDIU was remanded for an additional VA opinion that considered the effects of the Veteran's service-connected depression and left knee disability in combination. In June 2019, the claims file was returned to the February 2018 left knee examiner, who opined that there were no left knee residuals stemming from the Veteran's service-connected injury that would negatively impact the Veteran's ability to secure or follow substantially gainful employment. She stated that if further information was needed regarding occupational limitations due to the Veteran's service-connected depression, clarification should be sought from a mental health provider. She reiterated that the Veteran's left knee disability was resolved. Meanwhile, the Veteran had appealed the May 2018 Board decision to the Court, and in May 2019, the increased rating claim for the Veteran's left knee was vacated pursuant to a Joint Motion for Partial Remand based on perceived inadequacies with the February 2018 VA examination under Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was scheduled for a VA left knee examination in November 2019. The VA examiner diagnosed the Veteran with left knee residuals. It was noted that the Veteran used a left knee compression sleeve and a walking cane (for his nonservice-connected low back disability). While left knee motion was limited and pain was exhibited during flexion testing, the VA examiner stated that pain, weakness, fatigability, and incoordination did not impact functional ability with repeated use over time. The VA examiner stated that the Veteran's left knee disability would have no impact on his ability to perform occupational tasks. In May 2020, the RO sought an addendum opinion regarding the functional impact of the Veteran's left knee disability in an occupational setting. The opinion was obtained by the same examiner who conducted the February 2018 VA examination and issued the June 2019 addendum opinion. The VA examiner was indignant and exasperated that she was being requested for a third time to address the occupational impact of the Veteran's left knee disability. Despite the intervening November 2019 VA examination confirming a left knee disability, she opined that the Veteran's left knee disability was fully resolved and did not impact his ability to perform occupational tasks. She stated that it was out of her scope to comment on any occupational limitations caused by the Veteran's service-connected depression. In an October 2020 appellate brief, the Veteran's representative argued that the May 2020 VA medical opinion was inadequate, as the VA examiner "appeared to project bias towards the Veteran." The Board finds that the May 2020 VA medical opinion, and the comments regarding individual unemployability issued by the same VA examiner in February 2018 and June 2019 to be non-probative in this determination. The statements from this examiner were based on the erroneous conclusion that the Veteran's left knee disability was fully resolved, despite the November 2019 VA examination results, and contemporaneous left knee complaints in the VA treatment records. As such, the Board shall afford no evidentiary weight to the comments rendered by this VA examiner, consistent with the factfinding set forth in the June 2021 Board decision adjudicating the Veteran's increased rating claim for the left knee. The Veteran attended additional left knee VA examinations in November 2020 and January 2021. At the November 2020 VA examination, the Veteran reported an achy sensation in the left knee, with pain provoked by walking and climbing stairs. Range of motion was limited in the left knee, and the VA examiner opined that the Veteran's ability to bend would be impacted; and pain, fatigue, and weakness would result in functional loss over time and during flare-ups. The VA examiner noted that the Veteran ambulated with a cane, which would impact efficiency and disrupt/delay occupational tasks. The VA examiner opined that the Veteran's left knee disability would make walking, running, or climbing stairs problematic, but sedentary forms of work would be possible without challenges. At the January 2021 left knee VA examination, the Veteran reported severe left knee pain that prevented standing or walking for more than a few minutes. The VA examiner stated that pain impacted the range of motion of the left knee. Pain, fatigability, and lack of endurance caused functional loss after immediate repetitive use testing; and pain and fatigability caused functional loss after repeated use over time and during flare-ups. The VA examiner stated that interference with standing, disturbance of locomotion, instability of station, swelling, and deformity contributed to the severity of the Veteran's left knee disability. The VA examiner opined that the Veteran was independent with shopping, feeding, using public transportation, cleaning, cooking, tying/untying shoelaces, and buttoning his clothing. The VA examiner stated that the Veteran was unable to climb ramps, stairs, ladders, rope, and scaffolds; balance on narrow, slippery, or erratic surfaces; stand or walk on level terrain on a frequent basis; kneel; crouch when bending both of his legs and spine; stoop when bending at the waist; or frequently crawling. The VA examiner suggested that the Veteran could perform light desk work/sedentary work without any specific restrictions. The January 2021 VA examiner provided the most comprehensive evidence regarding the movements and physical abilities limited by the Veteran's service-connected left knee disability. The Veteran's VA treatment records since May 27, 2011 document chronic reports of left knee pain, but generally do not provide specific physical impairments or limitations of movement impacting physical abilities. No VA medical provider ever issued permanent physical or work restrictions due to the Veteran's service-connected left knee disability. In adjudicating this claim, the Board has given little weight to the VA examiner's statements regarding the classification of work the Veteran can perform, as the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but rather a determination that must be made by an adjudicator. See Geib v. Shinseki, 733 Fed.3d 1350, 1354 (Fed. Cir. 2013). The physical limitations resulting from the Veteran's left knee disability, such as those movements referenced by the January 2021 VA examiner, would not preclude the Veteran from performing sedentary employment in an office-like setting, where work is performed primarily in the sitting posture, with appropriate breaks. None of the lay or medical evidence establishes that the Veteran's left knee disability has negatively impacted his ability to sit for long periods of time, and sedentary employment does not require long-term standing, walking, bending, squatting, kneeling, crouching, climbing, or working on uneven surfaces. Additionally, the Veteran has past occupational experience performing administrative tasks, such as using a computer and other electronic equipment to draft reports, keep logs, and maintain files and inventory. Furthermore, the Veteran's service-connected disabilities do not impact his fine motor skills in the hands, such that he cannot grasp, type, or reach objects. Taken as a whole, the Veteran's symptoms from his service-connected depressive disorder and left knee disability have not prevented the Veteran from securing or following substantially gainful employment since May 27, 2011. Given the Veteran's education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers, the Board does not consider this level of impairment as one that would preclude all forms of substantially gainful employment. The Board acknowledges that the Veteran experiences symptoms that are inconvenient and limitations that would minimally impact his ability to perform tasks in a workplace setting. However, after review of the evidence of record, the Board finds that the Veteran's functional limitations would not preclude substantially gainful employment in a sedentary job, where the work requires the completion of simple administrative tasks with little exposure to the general public and is performed primarily in the sitting posture. [Continued on Next Page] Based on the foregoing, the Board concludes that the evidence is against a finding that the Veteran has been unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities since May 27, 2011, and his claim seeking entitlement to a TDIU is denied during this time period. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.