Citation Nr: 21075692 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-05 712 DATE: December 21, 2021 ORDER Entitlement to service connection for acquired psychiatric disorder, to include major depressive disorder (MDD), to include as secondary to service-connected left knee disorder, is denied. Entitlement to total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), is denied. FINDINGS OF FACT 1. The objective medical evidence shows than an acquired psychiatric disorder, to include MDD, was not incurred during active service, nor is it caused by an event, injury or illness occurring in active service and it is not proximately due to, the result of or made worse beyond its natural progression by service-connected left-knee disorder. 2. The evidence of record shows during the appeal period from January 1, 2021 the Veteran's service-connected disorders alone do not cause him or the average person to be unable to secure or follow a substantially gainful occupation, nor does the totality record prior to January 1, 2020, to include the Veteran's service-connected disabilities, employment history, educational and vocational attainments, and all other relevant factors, warrant referral to the Director of the Compensation Service for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include MDD, to include as secondary to service-connected left-knee disorder, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.16, 4.25 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1978 to September 1981. The Board will note at the outset that, although the Veteran asserts in his June 2020 Statement in Support of Claim that an ankle injury aggravated his current acquired psychiatric disorder, the Board has not included in its characterization of the issue ankle disorder as an aggravating disorder. As that disorder is not service connected, the Board will not address it in the claim for service connection, as it would avail the Veteran nothing since the claim cannot be established with a non-service-connected disorder as the aggravating disorder (see 38 C.F.R. § 3.310), and the Board consequently will not remand the service connection claim for an examination and opinion on that specific issue. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to, the result of or made worse beyond its natural progression by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Moreover, service connection of a nonserviceconnected disease or injury will be established if an increase in severity of the nonserviceconnected disability is shown to be proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the nonserviceconnected disease or injury. 38 C.F.R. § 3.310(b). The evidence must show (1) a current disability exists and (2) the current disability was the (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Entitlement to service connection for acquired psychiatric disorder, to include MDD, to include as secondary to and/or aggravated by service-connected left-knee disorder. The service treatment records (STRs) show in a 1978 "RA" examination the examiner found the Veteran's psychiatric status to be normal. The Veteran reported his health as, "I feel good" and denied any past or current frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. In December 1980, the Veteran complained of left-knee pain for 3 weeks. On examination, the treatment provider found orthopedic testing was negative, there was no lateral or medial instability, he found moderate patellar crepitus, as well as quadricep atrophy, and his impression was chondromalacia patellae. Later in December 1980, a treatment note shows the Veteran presented to sick call with left-knee pain for 1 month after a basketball game. The treatment provider assessed patellofemoral pain. In January 1981, the Veteran complained of left-knee pain now for 2 months. Several days later in January 1981 a treatment note shows the Veteran had a chronic complaint of left-knee pain, with x-rays showing a narrowing joint space. A February 1981 visit for treatment revealed a painful mass on the lateral aspect of the left knee. The treatment provider scheduled the Veteran for surgery in March. In the August 1981 separation examination, the examiner found the Veteran's psychiatric status to be normal. However, the Veteran now reported past or current depression or excessive worry. The examiner noted the Veteran's March 1981 left-knee surgery and added, "[p]rone to depression." The post-active-service record shows in approximately 10 visits between April 2004 and January 2007 to a private clinic for symptoms various of illnesses, the Veteran denied depression, anxiety or suicide attempts during review-of-systems questioning. During these visits, general examination by the treatment providers showed the Veteran was alert, oriented to time, place and person and exhibited no difficulty with speech or language. In a visit to VA in September 2008, the Veteran's 2-question depression screen was negative. A July 2009 VA primary care nursing notes shows the Veteran's score on a 9-question depression screen indicated mild depression. When presenting to VA in March 2010 for a follow-up visit after colon surgery, the treatment provider noted the Veteran was oriented to person, event and location and exhibited no obvious defects of thought content or expression. March 2010 VA psychosocial screenings showed "[n]o psychosocial concerns identified." An October 2010 VA 9-question depression screening indicated no depression. In May 2012, the Veteran underwent a VA examination for mental disorders, in which the examiner diagnosed recurrent, moderate MDD. He further found symptoms associated with the Veteran's diagnosis to be depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and suicidal ideation. The examiner further found occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior self-care and conversation. The examiner opined that the Veteran's current depression is less likely than not (less than a 50 percent probability) caused by or related to depression identified in the in 1981 separation examination. He explained in his rationale the Veteran is depressed but his depression does not have an obvious connection to his military service. He noted the Veteran's struggles with clinical depression began in the prior few years after he had to stop working due to physical limitations including serious injury to his right ankle in 2006, he then was diagnosed in 2010 with colon cancer, which aggravated his depression, thyroid problems in 2011 may have contributed to his depression, and since 2006 he has had recurring major depressive episodes. He further noted the Veteran in this examination did not report incidents of depression occurring before 2006. September 2011 and August 2012 VA primary care nursing notes show the Veteran's 9-question depression screen indicated no depression. November 2011 and January 2012 VA endocrinology notes, the treatment providers noted no depressed mood. The Veteran has submitted a June 2013 private Disability Benefits Questionnaire (DBQ) for mental disorders, completed by Dr. A.H.F., in which he diagnosed the Veteran with mood disorder due to medical condition, with major depressive features. He found symptoms associated with this diagnosis to be depressed mood, anxiety, near-continuous panic or depression affecting his ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, difficulties in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, suicidal ideation, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Dr. A.H.F. from found occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Dr. A.H.F.'s opinion, associated with the file in July 2013, states the Veteran's mood disorder with major depressive features more likely than not is an affective response set to the Veteran's service-connected physical limitations. He explained in his rationale that the Veteran was forced to stop working in 2006 due to his physical difficulties, in particular due to difficulty with mobility. Dr. A.H.F. notes that the May 2012 VA examiner's conclusion that the Veteran's depression is not linked to his military service is not supported by "overwhelming contrary data." Dr. A.H.F. added that the May 2012 VA examiner did not explore the connection between the Veteran's service-connected disorders and his depression. However, in its August 2018 Remand, the Board found Dr. A.H.F.'s opinion to be inadequate, noting that, although Dr. A.H.F. had commented that the Veteran was forced to stop working in 2006 due to his physical difficulties, specifically mobility, Dr. A.H.F. nonetheless did not provide a well-reasoned medical explanation. The Board further noted that, in particular, it is unclear whether Dr. A.H.F.'s rationale stands for the proposition that the Veteran stopped working due to service-connected physical difficulties, nonservice-connected physical difficulties or a combination of both. Additionally, Dr. A.H.F.'s reliance on the Veteran's difficulty with mobility could refer to a nonservice-connected disability. As the Veteran in fact had indicated in May 2012 and October 2014 VA examinations that he stopped working in 2006 because of a nonservice-connected ankle injury, the Board found Dr. A.H.F.'s opinion to be inadequate for evaluating the Veteran's claim. An April 2014 VA 9-question depression screen's results suggested no depression. August and November 2015 endocrinology notes show the Veteran reported no history of depression or anxiety. In an October 2014 VA examination for mental disorders, the examiner diagnosed recurrent MDD. He noted the Veteran's reports of difficulty sleeping, generalized anhedonia, concentration difficulties, changes in appetite, he does not look forward to anything in the future, his is isolative, and he has "vague" suicidal ideation, but with no plan. The examiner further noted there is no evidence of any mental health treatment since the mid-2000s and the Veteran is not taking any medication. He found symptoms associated with the diagnosis to be depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The examiner's overall behavioral observation was the Veteran's appears flat and congruent with depression. The examiner found occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner opined that the Veteran's current depression "is unrelated to the depression event he had in 1981." He explained that his current depression began after a severe ankle injury in 2006 which caused him to be unable to work and this combined with colon cancer and thyroid issues have all contributed to his depression. The examiner further opined that the Veteran's knee is not the primary cause of his depression. He explained that the Veteran's orthopedics file indicates the knee does not require surgery and his depression began long after his service-connected knee injury. April 2015 and May 2016 VA 9-question depression screen results suggested no depression. Regarding review-of-systems question for the Veteran's current psychiatric state in a May 2016 visit to VA, the treatment provider stated "no problem identified." January 2017 and February 2018 2-question depression screens were negative. June 2017 and May 2018 VA primary care notes show, on general examination, the Veteran exhibited normal mood and affect. In July and August 2018 VA mental health outpatient notes, the treatment provider noted the Veteran's son had passed away in the previous April and the Veteran now reported difficulty falling and staying asleep since his son's death and he endorsed moderate depression. In July 2018, the Veteran reported he had no history of significant depression prior to his son's death. The treatment provider further noted a June 2018 9-question depression screen was suggestive of moderate depression. In August 2018, the Veteran reported by telephone to his VA treatment provider that his depression symptoms were consistent with a major depressive episode and the symptoms made it very difficult to do his work, take care of things at home and get along with others. The Veteran was administered the 9-question depression screen in the following months and September, October and November 2018 the results indicated "symptoms are not consistent with a major depressive episode." An October 2018 VA mental health outpatient note shows the Veteran's reports of doing "better," his depression decreased from a 7-8/10 in severity when first presenting to a 4-5/10 in severity on average, he feels he is gradually doing better, and he does not wish to start an antidepressant. When presenting for emergency care at VA in June 2019, the treatment provider found on general examination the Veteran was oriented to place, person, and events, with no obvious defects of thought, content or expression. Psychosocial screening at VA in January 2019 shows no psychosocial concerns were identified and the Veteran's response to review-of-systems questions shows his psychiatric status was within normal limits. May 2020 and May 2021 depression screenings at VA were negative. August and September 2021 VA mental health notes show the Veteran presented with complaints of depression. The Veteran reported a "partially angry" mood, anhedonia, he becomes easily "aggravated," irritability, difficulty staying asleep, good energy, but he cannot exercise due to physical disorders and this causes weight-gain, difficulty with concentration and focus, but he has no suicidal ideation or homicidal ideation. In October 2021, the Veteran reported his mood has been "good at times," adding that overall it has been "fair," but he remains wakeful at night. He was assessed at this time with adjustment disorder with mixed depression and anxious mood, unspecified insomnia and obstructive sleep apnea. The Board will note here that in August 2018 and October 2020, the Board remanded the claim for additional development, including to obtain an adequate VA medical opinion regarding the claimed psychiatric disorder. Specifically, the Board's remand directives sought to address whether it is at least as likely as not that the Veteran's psychological disorder was caused or aggravated by the Veteran's service-connected left-knee disability. However, the Board previously had found the VA examination opinions of May 2012, October 2014, and November 2019 to be inadequate for rating purposes as they generally failed to address the aggravation element of the secondary service-connection question. However, in its May 2021 Remand, the Board found the January 2021 opinion also to be inadequate, as the opinion merely adopted the reasoning of the prior inadequate VA medical opinions and again failed to provide a satisfactory assessment of aggravation. See Stegall v. West, 11 Vet. App. 268 (1998). In remanding the claim for an inadequate opinion, the Board again emphasized, when a VA opinion is obtained, the VA must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Consequently, as the Board has previously found all the foregoing opinions inadequate, the Board will not now consider them. Addenda opinions followed in June 2021, in which the examiner first opined as to secondary causation, stating acquired psychiatric disorder, to include MDD, is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected left-knee arthritis, status post torn lateral meniscus repair. She explained in her rationale that the Veteran's mental health disorder has not been continuous and uninterrupted since military service, current depression appears to stem from a post-service serious right-ankle injury in 2006, as well as colon cancer, the death of his son and a thyroid condition, all of which affected his mental health. She added she cannot "eliminate the impact or link of these circumstances on Veteran's mental condition" and she cannot therefore "directly link a service-connected injury on the Veteran's current mental condition [sic]." In next addressing aggravation of the Veteran's mental health disorder by the service-connected left-knee disorder, the examiner first stated she cannot determine a baseline level of severity of the mental health disorder based on medical evidence available prior to aggravation or the earliest medical evidence following aggravation by left-knee disorder. She explained that, as examples, the record shows negative screening for depression in 2008 and 2009 screens indicated mild depression with a score of 6, the Veteran's August 2012 9-question depression screen (PHQ-9) indicated "no depression" and between 2014 and 2017, multiple depression screens administered all were negative for depression. Additionally, a July 2018 Primary Care - Mental Health Integration (PCMHI) indicated moderate depression, with June 2018 diagnoses of MDD following the death of Veteran's son, a 2018 appointment regarding the discovery of a malignant tumor, Veteran's depression was rated 7/8 out of 10, again, giving no indication of a relation to a service-connected disorder, and the most recent psychiatric appointments in 2018 indicated improvement in mood, with the Veteran declining antidepressants. The examiner opined the Veteran's mental health disorder is not at least as likely as not aggravated beyond its natural progression by left-knee disorder. In her rationale, she explained again the Veteran's mental health disorders have not been continuous and uninterrupted since military service, nor is there a clear "link" of current mental health symptoms being aggravated by knee pain. She noted the Veteran had a series of multiple events and an ankle injury at work in 2006, which resulted in ending his career, shortly after being diagnosed with colon cancer in 2010, thyroid problems in 2011 and depression in 2012. From the foregoing, the examiner concluded, although there is a 1981 reference to depression in the STRs, the Veteran has no history of continuous and uninterrupted depression since service. She added, "Service treatment records show that, after death of [the Veteran's] son and [his] cancer diagnosis... depression scales indicated decreased mood and mild to moderate depression." From this, she again further stated she cannot eliminate the impact or link of the foregoing on the Veteran's mental condition and she cannot "isolate the aggravation [by] or the direct link of service connected injury on Veteran's current mental condition [sic]." The Board has carefully considered the Veteran's June 2020 Statement in Support of Claim, the June 2020 lay statement of his wife and the June 2021 lay statement of his daughter, S.W., as well as the Veteran's reports to treatment providers, as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and his wife and daughter are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. Nonetheless, their lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The above statements and the Veteran's reports essentially consist of the contention that the onset of depression was after the left knee injury during active service, depression has continued and worsened, as he has left knee pain, and current symptoms confirm this. The Veteran is accurate to the extent the 1980-81 STRs show a left knee injury, subsequent surgery and the August 1981 separation examiner's comment noting the surgery and adding the Veteran is "prone to depression." From this the Veteran contends left knee disorder caused or aggravated depression. However, the Veteran's own further reports in the record after active service contradict that contention. In the period to at least 2006, the Veteran's makes affirmative denials of depression. For example, as stated in the summary of the record, in approximately 10 visits between April 2004 and January 2007 to his private treatment providers at a clinic for symptoms of various illnesses, the Veteran denied depression, anxiety or suicide attempts during review-of-systems questioning. Furthermore, during these visits, the treatment providers noted the Veteran was alert, oriented to time, place and person and exhibited no difficulty with speech or language, thereby indicating they did not detect signs of any mental disorder, to include depression. However, it is not the province of the Board to make its own unsubstantiated medical conclusions; it does not have the expertise. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The June 2021 VA examiner concluded from the record current depression appears to stem from a post-service serious right-ankle injury in 2006, a 2010 diagnosis of colon cancer, a 2011 thyroid condition, and the April 2018 death of his son, all of which may have contributed to current depression. The Board will also note among its factual findings from the record that the Veteran's visits to VA in 2008, 2009 and 2010 showed only 1 depression screening indicating mild depression. All other screenings in this period were negative, as well as there being no signs or symptoms of depression or any mental health disorder identified by treatment providers during 2010. As a further factual determination, the Board notes, if 2006 is taken to be the date of a documented right-ankle injury which possibly induced depression, the period between August 1981 separation from active service to 2006 nonetheless is approximately 25 years with no evidence, medical or lay, indicating complaints, treatment or diagnoses of depression or any psychiatric disorder. For these reasons, although the Veteran has drawn his conclusion based on what he is competent to observe and feel, that his service-connected left knee disorder either caused his depression or then and since has aggravated it, the Board finds the Veteran's conclusion as a basis of causation of current depression not to be credible. The Board assigns more probative weight to the opinions of the June 2021 VA examiner, who is a medical professional, thoroughly reviewed the Veteran's medical history, and fully explained the relationship of the current disorder to findings in the record. For the reasons stated, the opinions therefore are adequate for VA adjudication purposes. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). Lastly, for the same reasons expressed in its August 2018 Remand, as set forth above, the Board concludes that Dr. A.H.F.'s July 2013 private opinion is inadequate. He offers no clinical explanation as to why any limiting physical disorder would aggravate the Veteran's acquired psychiatric disorder; rather, Dr. A.H.F. simply makes an assertion alone. Moreover, the remainder of the opinion is spent voicing criticisms of the May 2012 VA examiner's opinion. For example, Dr. A.H.F. objects to the examiner's conclusion that the Veteran's depression is not linked to his military service is not supported by "overwhelming contrary data," yet he does not indicate what the data is. Dr. A.H.F. added that the May 2012 VA examiner did not explore the "connection" between the Veteran's service-connected disorders and his depression; however, the examiner was not requested to address what in Dr. A.H.F.'s characterization appears to be something approaching a claim for secondary causation. The record of treatment overall offers no evidence showing a connection of MDD to active service. Moreover, the record does not show a depressive disorder of a severity to impel the Veteran to seek treatment upon separation from active service, nor in the several years following until, as best the Board can tell from what is offered in the record, the Veteran received a diagnosis when undergoing the May 2012 VA examination for his claim for service connection. Nonetheless, there remains no evidentiary basis on which to establish a causal connection or "nexus" between current MDD and an event, injury or illness in active service and no continuity of symptomatology from the August 1981 separation examination, when the Veteran was noted as "prone to depression" after earlier left-knee surgery, to current treatment for MDD which could thereby establish left-knee disorder either proximately caused MDD or made it worse beyond its natural progression. For the foregoing reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for service connection for acquired psychiatric disorder, to include MDD, on any basis. TDIU A finding of TDIU is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by non-service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The record must reflect that circumstances, apart from non-service-connected conditions, place the claimant in a different position than other veterans having the same compensation rating. Put another way, assignment of a TDIU evaluation requires that the record reflect some factor which "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in and of itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in considering his or her service-connected disabilities, can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Additionally, "substantially gainful employment" is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to the veterans earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Marginal employment, odd-job employment and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17 (a). Total disability ratings for compensation may be assigned when the schedular rating is less than total and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only 1 such disability, that disability shall be ratable at 60 percent or more. If there are 2 or more such disabilities, there shall 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. 38 C.F.R. § 4.16 (a). The combined rating is achieved by "adding" the disability ratings together. However, this is not a conventional addition of numerical values. The efficiency of the individual for employment purposes is not reflected as a numerical value equivalent to the assigned disability rating; in terms of actual efficiency, the number will be lessened under the regulation. However, VA recognizes that earning capacity is affected exponentially as a less severe service-connected disability is added to the most severe service-connected disability, thereby reflecting the ever-diminishing efficiency of the individual. See 38 C.F.R. § 4.25. The United States Court of Appeals for the Federal Circuit has held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the VA Regional Office. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran's service-connected disabilities, employment history, education and vocational attainment, and all other factors bearing on the issue will be considered. 38 C.F.R. §§ 3.341, 4.16 (b), 4.19. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to review the entire record, the Federal Circuit has held that the Board does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows or fails to show as to the claims. 2. Entitlement to TDIU. During this period, the Veteran has been service connected for a left-knee disorder rated at 40 percent disabling since April 17, 2012. He is also service-connected for right-total-knee replacement, for which he received a deferred evaluation at 60 percent from January 1, 2021, prior to which it was rated at temporary total ratings (100 percent) for surgery and convalescence. He received another temporary total rating from July 6, 2021 and from September 1, 2021 the rating was returned to 60 percent. The Veteran's other service-connected disorders are left-ear hearing loss, left-knee scar and right-knee scar, each currently rated at noncompensable rating. The Board will briefly note that, as the service-connected disorders of hearing loss, left-knee scar and right-knee scar are rated at noncompensable ratings, their medical records provide no relevant findings for the claim of TDIU, as noncompensable ratings indicate no functional effects from any discernible symptoms. The Veteran's combined ratings were 50 percent from April 17, 2012, 40 percent from August 22, 2014, 100 percent from June 17, 2019, 80 percent from January 1, 2021, 100 percent from July 6, 2021, and 80 percent from September 1, 2021. Therefore, for the periods of temporary total ratings for right knee disorder, the claim for TDIU is moot. However, excluding the periods of the 100 percent combined ratings, the periods before January 2021 do not satisfy the regulatory threshold for TDIU, set forth above, of 2 or more disabilities, with 1 disability ratable at 40 percent or more and sufficient additional disability from others to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). That notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Therefore, although the schedular criteria for TDIU, as set out in 38 C.F.R. § 4.16 (a), are not met, a total rating on an "extraschedular" basis nonetheless may be granted in cases, pursuant to specifically prescribed procedures and depending on the totality of the record, to include the Veteran's service-connected disabilities, employment history, educational and vocational attainments, and all other relevant factors. 38 C.F.R. § 4.16 (b). Therefore, to accord justice in the such cases when the schedular ratings are found to be inadequate, the Director of the Compensation Service, upon field station submission, is authorized to approve an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. Neither the Regional Office nor the Board is permitted to assign an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). However, the Board may review the later determinations of the Director. Anderson v. Shinseki, 22 Vet. App. 423, 427. Turning to the record, the Veteran submitted a January 2021 Application for Increased Compensation based on Individual Unemployability (VA Form 21-8940), in which the Veteran's states the service-connected disability preventing him from securing or following a substantially gainful occupation is "Arthritis (L) Knee." He further states full-time work was affected on May 7, 2015, he last worked full-time on June 1, 2015 and he became too disabled work on January 8, 2016. The Form 8940 shows the Veteran worked for a concrete company from November 1990 to November 2008, with his highest monthly gross earnings being $50,000. The Veteran added a statement that he is unable to get in and out of his truck due to the left knee pain, loss of balance and flexion and extension. He states has not sought employment since becoming too disabled to work. The Form 8940 further indicates the Veteran had completed a high-school education, but there has been no education or training since becoming too disabled to work. Looking first to the period from January 1, 2021 as it pertains to the claim for schedular TDIU, the Board first notes the Veteran's reports in a January 2021 VA examination for mental disorders that after knee surgery he was "no longer really able to work," chronic pain makes it difficult for him to get out of bed sometimes, swelling and pain prevents him from doing the things that he wants to do, and he is often left feeling frustrated and aggravated. A May 2021 VA examination for knee and lower-leg conditions shows diagnoses of left-knee meniscal tear, left-knee arthritis status post torn lateral meniscus repair, bilateral knee-joint osteoarthritis, and bilateral degenerative knee arthritis (other than post-traumatic). The Veteran reported constant right-knee pain, described as aching pain that radiates down leg and into foot at a 10/10 severity and, although the Veteran further reported resulting functional loss of inability to stand, lift, bend, and walk after repeated use, he reported no left-knee functional loss or impairment. The examiner noted no reports by the Veteran or a history of knee instability or recurrent subluxation. Right-knee range of motion for flexion was reduced to 40 degrees (140 degrees, normal) and extension to 20 degrees (0 degrees, normal). Left-knee flexion ended at 100 degrees and extension at 10 degrees. Measurements for both knees remained the same during repeated use over time. Right-knee measurements remained the same during flare-ups and the Veteran reported there were no left-knee flare-ups. The examiner found no subluxation, joint instability or patellar instability in either knee, no ankylosis, no tibial and/or fibular impairment, no meniscal conditions, there were right-knee replacement surgeries in 2017 and 2019, with residual weakness, pain or limitation of motion, a left-knee meniscectomy in 2009, and the Veteran regularly uses a cane and occasionally a walker. The examiner found the impact of the disorders on the Veteran's ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) is the inability to walk any distance, stand for prolonged periods, bend, or lift. The Veteran was afforded another VA examination for knee and lower-leg conditions in July 2021, in which the examiner made only right-knee diagnoses of right-knee degenerative arthritis and status post right-knee arthroplasty. The Veteran reported previous symptoms of pain preventing sleep, his leg giving out, there was a third right-knee replacement approximately 2 weeks prior to this examination, and current symptoms are much pain and difficulty climbing stairs, he cannot stand for very long and he can walk only a short distance. The examiner noted no reports by the Veteran or a history of knee instability or recurrent subluxation. Right-knee findings include range of motion measurements of 35 degrees flexion and 0 degrees extension. Repeated use over time showed the same measurements. The Veteran reported right-knee flare-ups to occur once a month, they are severe, they last 1 hour, they are precipitated by walking or standing for long periods, and they are alleviated by pain medication and an ice bag. Although the examiner found no subluxation, joint instability or patellar instability in either knee, he also commented at the end of the examination report that he could not perform right-knee joint-stability testing because of the Veteran's recent total right-knee replacement. He further found there is no ankylosis, no tibial and/or fibular impairment, no meniscal conditions, there were right-knee replacement surgeries in 2017, 2019 and now in 2021, with chronic residuals consisting of severe painful motion or weakness, prior left-knee surgery, and the Veteran reported on this examination he constantly uses a brace and a cane. The examiner found the impact of the disorders on the Veteran's ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) is the inability to do any prolonged walking, standing or climbing stairs. The record of VA visits after January 2021 overall shows the Veteran consistently reported bilateral knee pain, with swelling in February 2021. A May 2021 primary care nursing note shows, when the Veteran was questioned on his physical activity, the treatment provider noted from his response that he walks, "only he has bad knees." The treatment provider added the Veteran ambulates with a cane due to chronic knee pain. As stated in the above summary of the July 2021 VA examination, the Veteran underwent a third total right-knee replacement earlier in July 2021. A September 2021 follow-up questionnaire from the Veteran's private treatment provider after the July 2021 total right-knee replacement shows the Veteran's responses indicating moderate-to-severe stiffness after waking in the morning; severe pain when twisting/pivoting; moderate pain when straightening the knee fully, severe pain when ascending/descending stairs, standing upright and rising from sitting, and extreme pain when bending to the floor/picking up an object. An October 2021 VA mental health outpatient note shows the Veteran reported he stays "pretty busy around the house," but "with this knee being so bad, I can't do much exercise." In 2009, the Veteran applied for VA's vocational rehabilitation and employment services program (VRE). As stated, the Veteran's has a high-school education. His military occupation specialty (MOS) was as a truck driver. After the vocational rehabilitation counselor administered testing in December 2009, the Veteran's aptitude results showed scores between 79 and 93 for general learning ability, verbal aptitude, numerical aptitude, spatial aptitude, form perception, and clerical perception. The Veteran's scores were at 100 for motor coordination, finger dexterity and manual dexterity. The counselor noted the Veteran's intertest in areas of employment as average interest only in physical performing and mechanical, with below average interest in other areas, to include, by way of example, business detail, selling, industrial, and scientific. Based on the foregoing, the counselor formulated recommendations based on interest areas and further divided into work groups based on aptitude requirements, which for the Veteran were plants/animals, industrial, mechanical, vending, passenger services, attendant services, and possibly clerical handling (not clearly marked). In terms of actual job titles, examples of plant/animal work would include farmworker (livestock, poultry), forest-fire fighter, groundskeeper, harvest worker, packer of agricultural produce, garden worker, etc. For mechanical, jobs might include janitor, electrician's helper, kitchen food assembler, laundry worker, roofer applicator, cleaner for commercial/ institutional entities, kitchen helper, truck-driver helper, etc. The industrial field titles include mailing-machine operator, gun welder, equipment cleaner, electronics worker, stamping-press operator, hand packager, fish butcher, etc. The clerical field includes such positions as general or distributing clerks, file clerk, deliverer, coin-machine collector, etc. Vending positions included vendor, peddler and photographer. Passenger services included driving instructor and taxi, bus (general) and chauffeur drivers. Lastly, examples of attendant services positions include baggage checker, caterer helper, personal attendant, hospital food-service worker, ticket taker, dining room or cafeteria attendants, usher, etc. The Veteran's lay statement and reports to treatment providers and VA examiners consistently indicates he is unable to walk more than short distances, stand for long periods or ascend or descend stairs. As a factual determination by the Board, these limitations alone would eliminate the majority of the above examples of prospective employment. Nonetheless, vocational rehabilitation aptitude testing shows the Veteran maintains high capacities for motor coordination, finger dexterity and manual dexterity, suggesting competency in sedentary employment. However, the Veteran's military and work experience is limited to driving and cement/concrete application and finishing, the latter of which suggests a high degree of movement, particularly bending, crouching and squatting, in short, the very movements now precluded by repeated right-knee replacements and left-knee previous surgery and current inflammation. The VA examinations summarized above show pronounced limitation of range of motion in both knees. Additionally, the Veteran otherwise has no training or education for sedentary work of an advanced nature, such as use of computers for data entry, searches or maintaining of records. In looking to the several examples listed above involving driving, the Veteran has specifically reported in his January 2021 Form 8940 that becoming too disabled to work was due partly to being unable to get in and out of his truck at work, adding this is due specifically to range of motion limitation in knee flexion and extension. Therefore, any sort of driving would likely entail the same difficulties. Moreover, the Veteran has reported left-knee pain is caused by prolonged sitting, Consequently, the plausible avenues of sedentary employment remaining would be unskilled use of the fingers, hands and arms, which in turn would include only some of the examples of job titles in employment areas, recommended by the vocational rehabilitation counselor. Nonetheless, the May 2021 VA examiner found the impact of the Veteran's knee disorders on his ability to work is specifically the inability to walk any distance, stand for prolonged periods, bend, or lift and the July 2021 VA examiner stated the impact on work as the inability to do any prolonged walking, standing or climbing stairs. As it is, for the period from January 1, 2021, in noting that, although the Veteran reported at the July 2021 VA knee examination ambulation is now constantly with the use of a cane, he further reports he "walks" nonetheless, thereby indicating he is not bedridden and retains some ability to get to and from a workplace using a mode of transportation, and with accommodations by employers and the use of adaptive devices for prolonged sitting, more commonly available now in the workplace, the Board finds the Veteran's service-connected disabilities do not absolutely prevent him from securing or following a substantially gainful occupation. In looking to the period from April 17, 2011 up to January 1, 2021 for TDIU on an extraschedular basis, a May 2012 VA examination for knee and lower-leg conditions shows a diagnosis of left-knee degenerative joint disease. The Veteran reported that, after left-knee surgery in service, he developed first intermittent then gradually worsening pain. Range of motion measurements showed left-knee flexion ending at 120 degrees (140 degrees, normal) and extension ending at 30 degrees (0 degrees, normal). The examiner further found left-lower leg joint stability tests produced normal results, there was no patellar subluxation/dislocation, no tibial and/or fibular impairment and no meniscal conditions. She found left-knee disease impacts the Veteran's ability to work, as his left-knee disorder gives out frequently and is more painful with walking and he uses crutches intermittently. In the May 2012 general medical VA examination, the examiner found the Veteran's service-connected disabilities should not render him unable to secure and maintain substantially gainful employment, adding, "He may be limited on physical requirements due to his knee condition but should be able to secure and maintain sedentary or minimal physical employment." In an August 2014 VA examination for knee and lower-leg conditions, the examiner diagnosed left knee degenerative arthritis, left knee moderate patellar femoral chondromalacia and left knee Baker's cyst. He noted the Veteran's reports of his left knee giving out, constant pain without change and using a cane to ambulate. Range of motion measurements showed right-knee flexion ending at 120 degrees and extension at 0 degrees. Left knee flexion ended at 90 degrees and extension at 0 degrees. The Veteran reported there were no flare-ups. The examiner found no evidence or history of recurrent patella subluxation/dislocation, no tibial and/or fibular impairment, no meniscal conditions, no joint replacement, and he used a cane regularly. The examiner noted the Veteran had undergone a 1979 surgery, but he could not give details. He found the impact of the knee disorders on the Veteran's ability to work in not being able to walk more than a block at a time due to knee pain, causing him to rest, then resume walking. An October 2017 VA primary care noted the Veteran's reports of left knee sharp pain with prolonged standing, as well as sitting. In a February 2018 VA primary care note, the treatment provider noted the Veteran's complains of chronic bilateral knee pain with known left knee osteoarthritis. The Veteran reported increasingly painful right knee pain over the past 2 weeks to the point that he has relied on crutches to walk, swelling, the knee has given out, but no fever or redness. He further reported left-knee physical therapy with minimal improvement, a left-knee injection without relief, orthopedic services suggested the option of a total knee replacement for worsening symptoms, but was also advised weight loss would be necessary. In a later February 2018 VA primary care note, the treatment provider noted the above complaints and reports and assessed the Veteran with left knee osteoarthritis, unstable and noted that right knee pain was new. He added that he suspected the Veteran also has right-knee osteoarthritis, for which he planned x-rays and referral for physical therapy and a right-knee injection, which the Veteran received in April 2018. In June 2018, he reported receiving a right-knee injection because "it was killing me so bad, I asked them to inject the right knee instead of the LEFT one that it was supposed to be for. Well, both knees are still killing me, even after the injection 6 weeks ago." A July 2018 VA physical therapy notes shows the therapist's impression was bilateral knee pain, left knee tricompartmental osteoarthritis and more recent right knee meniscus tears, the Veteran would benefit from physical therapy to improve range of motion / strength and reduce pain, and might also benefit from the bracing clinic. In an August 2018 VA surgery consult, the Veteran reported right knee pain for the last 6 to 12 months, pain is diffuse, worse with activity, no mechanical symptoms, and an April 2018 injection worked well for approximately 4 weeks. On physical examination, residuals of total right knee replacement included mild diffusion, right-knee flexion ending at 120 degrees, diffuse pain, and no instability. The examiner assessed the Veteran with right knee osteoarthritis, with degenerative menisci. An August 2018 VA physical therapy notes shows right knee flexion was recorded as ending at 90 degrees, with extension at 0. Left knee flexion ended at 110 degrees, with extension ending at 0. In a June 2019 VA orthopedic surgery outpatient note, the treatment provider noted the Veteran has a right-knee chronic arthro-fibrotic condition and the left knee has significant moderate to moderately severe tricompartmental arthritis. The treatment provider assessed the Veteran will likely need a left knee replacement. In a November 2019 VA examination for knee and lower leg conditions, the examiner stated September 2019 diagnoses of left knee meniscal tear and bilateral knee joint osteoarthritis. He noted the Veteran's reports chronic right knee pain, being limited in all recreational activities due to both knees, a total right knee replacement planned for the following week and being unable to work for 2 years. The examiner's range of motion measurements showed right knee flexion as "65 to 85 degrees" and extension as "85 to 65 degrees." Left knee flexion was from 0 to 120 degrees and extension from 120 to 0 degrees. There was no change during repeated use over time and the Veteran did not report flare-ups. The examiner found no subluxation, joint instability or patellar instability in either knee, no ankylosis, no tibial and/or fibular impairment, he identified the Veteran's left knee meniscal tear, he noted prior surgeries, and he noted the Veteran uses assistive devices, but did not specify them. He found the functional impact of disorders on the ability to work to be the Veteran can do "sit-down work" only. The record overall in this period through to January 2021 shows consistent reports by the Veteran of constant pain associated with both knees. The record also consistently indicates the Veteran's limitations of movement from both knee disorders in this period were pronounced and the pain attendant on movement severe. Yet, the Board will note again the Veteran received right knee temporary total ratings in this period from June 2019 up to January 2021. Prior to that, VA examination and physical therapy sessions show some reduced range of motion, often with flexion for both mees at 120 degrees, only 20 degrees below the normal range. Throughout 2018, symptom for both knees worsened, culminating in the right-knee replacements in 2019. However, there is no other competent evidence of record in the period prior to January 1, 2021 which contradicts the determinations of the 3 VA examiners between May 2012 and November 2019 that the Veteran was capable of sedentary work. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, for the same reasons discussed above, the Veteran's employment prospects, as indicated in the vocational rehabilitation analysis and recommendations, does not indicate the inability to secure or follow a substantially gainful occupation. The foregoing does not suggest the record shows sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities in the period prior to January 1, 2021. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). After considering the totality of the record prior to January 1, 2021, to include the Veteran's service-connected disabilities, employment history, educational and vocational attainments, and all other relevant factors, the evidence does not warrant referral to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). After considering the totality of the record from January 1, 2021, the Board finds the preponderance of the evidence reflects the Veteran's service-connected disabilities alone do not preclude him or an average person from securing and following a substantially gainful occupation. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claims, the doctrine is not applicable, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Bonnie A. Yoon Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, Associate 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.