Citation Nr: 21076233 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-19 324A DATE: December 22, 2021 ORDER Service connection for a back disability is denied. Service connection for a right foot disability is denied. Service connection for a left foot disability is denied. Entitlement to a rating in excess of 40 percent for cervical spine strain with degenerative arthritis of the spine is denied. Entitlement to a rating in excess of 10 percent for chondromalacia of the right knee with osteoarthritis is denied. Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee with osteoarthritis is denied. Entitlement to a rating in excess of 10 percent for medial and lateral instability in the right knee due to chondromalacia is denied. Entitlement to a rating in excess of 10 percent for medial and lateral instability in the left knee due to chondromalacia is denied. The claim for a total disability rating for compensation based on individual unemployability (TDIU) based on disabilities other than post-traumatic stress disorder (PTSD) prior to August 11, 2014, is legally moot. FINDINGS OF FACT 1. The most probative evidence of record weighs against a conclusion that the Veteran has a back or left or right foot disability due to service; arthritis of the back or right or left foot was not shown within one year of service. 2. Residuals of a cervical spine strain with degenerative arthritis of the spine do not include ankylosis of the entire spine or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least six weeks during a 12- month period. 3. Residuals of chondromalacia of the right or left knee do not include limitation of flexion to 30 degrees or limitation of extension to 15 degrees. 4. Recurrent subluxation or lateral instability is not shown in either knee. 5. The service connected right and left knee disability has not resulted in an unrepaired or surgical failed repair of a complete ligament tear or surgical repair of the patellofemoral complex. 6. Pursuant to rating action conducted in October 2019, entitlement to TDIU was granted based on combined service-connected disabilities effective from a time prior to the beginning of the appeal period, January 1, 2011. CONCLUSIONS OF LAW 1. The criteria for service connection for a back or left or right foot disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). 2. The criteria for a rating in excess of 40 percent for cervical spine strain with degenerative arthritis of the spine are not met. 38 U.S.C. §§ 1155, 5003, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2021). 3. The criteria for a rating in excess of 10 percent for chondromalacia of the left or right knee are not met. 38 U.S.C. §§ 1155, 5003, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5260, 5261 (2021). 4. The criteria for a rating in excess of 10 percent for medial and lateral instability of the left or right knee due to chondromalacia are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5257 (to include under revisions effective from February 7, 2021, and the criteria in effect prior to that time). 5. The claim for TDIU prior to August 11, 2014, based on disabilities other than PTSD must be denied as a matter of law. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 4.16 (2021); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February1971 to November 1973, May 1974 to April 1976, and from June 1977 to November 1983. This case was remanded by the Board of Veterans' Appeals (Board) in June 2019 and is now ready for appellate review. As development conducted pursuant to this remand resulted in grants of service connection of peripheral neuropathy of the left and right upper and lower extremities pursuant to rating decisions issued in August and October 2020, and the Veteran did not perfect a timely appeal with respect to the matter of a rating in excess of 50 percent for PTSD prior to August 11, 2014, addressed in a November 2019 statement of the case in compliance with Manlincon v. West, 12 Vet. App. 238 (1999) completed pursuant to the instructions of the June 2019 remand, the issues currently on appeal are limited to those listed on the first page of this decision. I. Service Connection Claims A. Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Where a Veteran manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. § §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309 (a), such as arthritis. B. Analysis The Veteran contends that he has back and foot disorders due to combat service in Vietnam, to include during a helicopter accident or after receiving rocket fire. While he asserted that he received the Purple Heart Medal during service, his awards and decorations do not reflect receipt of this medal or any other awards or decorations indicative of exposure to combat (a DD Form 214 from a post Vietnam period of service from June 1977 to November 1983 does list "Purple Heart" as one of the Veteran's medals, but such appears to have been added after this form was originally completed and is otherwise of questionable authenticity). The Veteran's DD Form 214 from his period of service in Vietnam from July 1971 to March 1972 did not reflect awards or decorations indicative of exposure to combat and his military occupational specialty during this period of service, Crawler Track Operator, is not a type of duty associated with combat. As such, and as development conducted pursuant to the June 2019 Board remand did not reveal any evidence that the Veteran received the Purple Heart Medal or any other award documenting exposure to combat, the analysis below will not include consideration of the legal provisions that pertain to injuries asserted to have been sustained in combat. Aside from isolated references in June 1972 to back pain and muscle spasms and March 1982 to mechanical back pain with paraspinous muscle spasms, the service treatment reports (STRs), to include the reports from the September 1973 separation examination from the Veteran's first period of active duty and a March 1983 medical board examination following the Veteran's third and final period of active duty, are silent for back or foot disabilities. In addition, a medical history collected at the time of the March 1983 medical board examination reflected the Veteran specifically denying a history of recurrent back pain or foot trouble. After service, the first VA general examination of the Veteran conducted in March 1984 was silent for back of foot disabilities or any complaints related thereto. Thereafter, January 2000 and July 2011 VA orthopedic examinations were also silent for a back or foot disability or complaints related thereto. A September 2013 VA examination of the thoracolumbar spine noted a diagnosis of degenerative lumbar spondylosis in 2011 and resulted in the opinion that such was not caused by or a result of active service "specifically acute symptoms of mechanical low back pain/acute lumbar strain symptoms treated during active military service." The rationale for the opinion was as follows: The service treatment record is silent for a diagnosis of degenerative lumbar spondylosis. The service treatment record is, likewise, silent for chronic treatment of mechanical low back pain. There is a significant silent interval between the [V]eteran's separation from the military and [h]is seeking care or compensation for the claimed condition. Disc degeneration and accompanying arthritis is a common development. Age related changes are present in 40% of adults over age 35 years and in almost all individuals over age 50. (Medical treatise citations omitted) The [V]eteran's lumbar spondylosis is a stand-alone entity, neither due to nor aggravated by military service or acute symptoms of mechanical low back pain/acute lumbar strain symptoms noted within the service treatment records. VA examinations to address the claims for service connection for back and foot disorders completed in October 2020which noted diagnoses of degenerative lumbar spondylosis in September 2013, and degenerative disc disease in the lumbar spine in February 2020, and bilateral degenerative arthritis of the feet in August 2020resulted in the conclusions that it was less likely and not that a back or foot disorder was incurred in or caused by service. The rationale for these conclusions was as follows: There is no medical evidence [that] the Veteran's back disability incurred in or was caused by his service. In the available medical records, the Veteran had no significant back injury to result in a long term or chronic back condition. The Veteran was noted to be seen 06/19/1972 for back pain with muscle spasms with no further medical sequelae noted in service. The Veteran reported "I am in good general health" and had a normal separation physical 03/15/1983. The most likely cause of the Veteran's current back condition is the natural aging process or a post military service injury. There is no medical evidence [that] the Veteran's current bilateral foot disability [was] incurred in or was caused by his service. The Veteran was noted to have mild to moderate degenerative arthritis of his feet on XR[ay] 08/21/2020. [The] STRs are silent for a bilateral foot complaint or injury. The Veteran reported "I am in good general health" and had a normal separation physical 03/15/1983. The most likely cause of the Veteran's current bilateral foot condition is the natural aging process or a post military service or recreational injury. There is no positive opinion of record that contradicts the negative opinions set forth above, and the Board finds these opinions to be definitive as to the claims for service connection for back and bilateral foot disorders as they are based on a thorough review of the clinical record, reflect consideration of the Veteran's lay assertions, and are supported by adequate rationale. To the extent the assertions of the Veteran and his representative are advanced in an attempt to establish that the Veteran has a back or foot disability as a result of service, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative are shown to have the appropriate training and expertise, they are not competent to render a persuasive opinion as to such matters. While the Veteran is competent to describe any lay observable symptoms associated with a back or foot a disability, the undersigned finds the silent separation examinations for the these conditions and specific denial of back or foot problems at separation from the Veteran's final period of service; the negative medical opinions set forth above; and the lack of any competent evidence linking these conditions to service to be more probative than any lay assertions made in connection with the claims for service connection for a back or foot a disability, and that these facts weigh against a finding of continuity of relevant symptoms associated with these conditions since service. Further, the evidence provided to the medical board was contemporaneous and weighs against the Veteran's statements that the back and feet have been symptomatic since service. Finally, as the Veteran's arthritis of the back and feet were not shown to a compensable degree within one year of separation from service, service connection for such on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Given all of the above, the Board finds that the preponderance of the evidence is against the claims for service connection for a back and right or left foot disability. As such, these claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. II. Increased Rating Claims A. General Legal Criteria Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. B. Cervical Spine 1. Rating Criteria For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Traumatic arthritis is rated as for degenerative arthritis. DC 5010. The General Rating Formula for Diseases and Injuries of the Spine provides that for DCs 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the cervical spine, forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 30 percent is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine that is not greater than 170 degrees, or if the spine disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. The General Formula also includes the following notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method results in the higher evaluation. 2. Analysis Service connection has been granted for cervical spine strain with degenerative arthritis at a disability rating of 40 percent from the effective date of the grant of service connection, December 31, 1996. As set forth above, increased rating may be assigned for this disability under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS, whichever method results in the higher evaluation. The only available increased rating for the cervical spine under the General Rating Formula would be the 100 percent rating assignable for unfavorable ankylosis of the entire spine. An increased rating of 60 percent would be warranted under the Formula for Rating IVDS if there are incapacitating episodes of IVDS in the cervical spine having a total duration of at least six weeks during a 12-month period. Reviewing the clinical record during and proximate to the appeal period, there is no clinical evidence of any ankylosis of the cervical spine, much less unfavorable ankylosis of the entire spine. There is also no evidence during this period that the Veteran has suffered from incapacitating episodes of IVDS involving the cervical spine having a total duration of at least six weeks during a 12-month period. In this regard, a July 2011 VA general orthopedic examination noted that the Veteran had no ankylosis and did not reference any complaints or findings indicative of IVDS. A July 2014 VA examination of the cervical spine also revealed no ankylosis. IVDS was diagnosed at this examination but the Veteran was said to have had no incapacitating episodes of such in the prior 12 months. The most recent VA examination of the cervical spine conducted in February 2020 pursuant to the June 2019 Board remand revealed no ankylosis and reported that the Veteran had no IVDS of the cervical spine. Finally, review of the VA outpatient treatment reports, of record through September 2020 at the time of this writing, also does not reveal ankylosis of the cervical spine or incapacitating episodes of IVDS involving the cervical spine having a total duration of at least six weeks during a 12-month period. With respect to the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016), the September 2020 VA examiner noted that there was pain in the cervical spine on non-weight bearing and that passive motion testing of the cervical spine could not be performed or was not medically appropriate. In short, and as a rating in excess of 40 percent rating cannot be assigned for limitation of motion of the cervical spine, increased compensation for the service-connected cervical spine disorder pursuant to Correia is not warranted. As for the findings with respect to flare-ups required by Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Veteran at the July 2014 VA examination described flare-ups in the cervical spine that could significantly limit functioning, to include additional loss of motion. The examiner reported that he could not quantify the additional loss of motion during flare-ups without resorting to speculation. At the September 2020 VA examination, the Veteran in his own words described flare-ups of pain in the cervical spine during wet weather, especially on this left side. The examiner noted that pain and lack of endurance significantly limited functional ability with flare-ups. In short, the undersigned has considered the Veteran's complaints of fare-ups but finds any impairment resulting therefrom to be adequately compensated by the 40 percent rating that has been assigned for cervical spine strain with degenerative arthritis. Finally, with regard to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40, 4.45 and the holdings in DeLuca and Mitchell, the reports from the examinations discussed above document consideration of these principles, to include repetitive motion. In particular, the July 2014 VA examination found contributing factors of less movement than normal, incoordination, and pain on movement following repetitive motion. The September 2020 VA examination showed no additional loss of motion with repetitive motion of the cervical spine. Pain and fatigue were said to significantly limit functional ability with repeated use of the cervical spine over a period of time. The above findings have been carefully considered, but the undersigned finds that the 40 percent rating currently assigned for cervical spine strain with degenerative arthritis adequately compensates the Veteran for any impairment resulting from pain, and that no additional compensation would be warranted for the service-connected cervical spine disorder under the provisions of 38 C.F.R. §§ 4.40, 4.45 and the holdings in DeLuca and Mitchell. C. Knees 1. Rating Criteria Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. Under DC 5260, a 10 percent is warranted when flexion is limited to 45 degrees. A rating of 20 percent is warranted when flexion is limited to 30 degrees and a rating of 30 percent is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. The maximum assignable rating for limitation of knee flexion under DC 5260 is 30 percent. Id. Under DC 5261, a 10 percent rating is warranted when extension is limited to 10 degrees and a 20 percent rating is warranted when extension is limited to 15 degrees. A rating of 30 percent is warranted when extension is limited to 20 degrees while a 40 percent rating is warranted when extension is limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5261. A 50 percent is warranted when extension is limited to 45 degrees. Id. Prior to revisions which became effective February 7, 2021, slight recurrent subluxation or lateral instability of a knee warranted a 10 percent rating under DC 5257. A 20 percent rating required moderate recurrent subluxation or lateral instability, and a 30 percent rating was warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257 (as in effect prior to February 7, 2021). The revisions to DC 5257 effective from February 7, 2021, provide for a 10 percent rating for a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s),crutch(es), walker) for ambulation; an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation; or if there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. 85 FR 76464, Nov. 30, 2020. A 20 percent rating is warranted under the revision to DC 5257 for an unrepaired or failed repair of a complete ligament tear that causes persistent instability and requires a medical provider prescription of both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Id. These revisions to DC 5257 also provide for a 20 percent rating for patellar instability resulting in a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. Note (1) under the revisions to DC 5257 states that with respect to patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. Note (2) under these revisions provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as "surgical repair" for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003/5010 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). In VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998), VA's General Counsel further explained that, to warrant a separate rating, the limitation of motion need not be compensable under DC 5260 or 5261; rather, such limited motion must at least meet the criteria for a zero (0) percent rating. The VA General Counsel has also held that separate ratings under 38 C.F.R. § 4.71a, DCs 5260 and 5261 may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). 2. Analysis Service connection has been granted for chondromalacia of the right knee with osteoarthritis, with 10 percent ratings assigned for each knee effective from the December 31, 1996, grant of service connection under DC 5260 and separate 10 percent ratings for each knee under DC 5272 based on based on medical and lateral instability effective from January 18, 2011. See VAOPGCPREC 23-97, VAOPGCPREC 9-98. Turning first to whether a rating in excess of 10 percent may be assigned under DC 5260, such would require evidence during or proximate to the appeal period of limitation of flexion in either knee to 30 degrees. A rating in excess of 10 percent could also be assigned on the basis of limitation of extension under DC 5261 if extension in either knee was limited to 15 degrees. Such limitation of knee motion required for a rating in excess of 10 percent in either knee is not shown by the evidence for consideration. In this regard, the aforementioned July 2011 VA orthopedic examination showed full extension and 125 degrees of flexion in each knee. An August 2014 VA examination of the knees showed 90 degrees of flexion and full extension in each knee. The most recent VA examination of the knees conducted in February 2020 pursuant to the June 2019 Board remand showed 90 degrees of flexion and full extension in the right knee and 110 degrees of flexion and full extension in the left knee. A review of the VA outpatient treatment reports does not reveal any evidence of limitation of flexion in either knee to 30 degrees or limitation of extension in either knee to 15 degrees. As such, increased compensation may not be assigned for service-connected disability in either knee on the basis of limitation of motion. 38 C.F.R. § 4.71a, DCs 5260, 5261. With respect to increased compensation on the basis of instability under DC 5257, a rating under the criteria codified at DC 5257 prior to the revisions made effective from February 7, 2021, would have required moderate recurrent subluxation or lateral instability. Review of the VA examinations of the knees as set forth above reflect no findings or complaints referencing moderate disability due to subluxation or lateral instability in either knee. The August 2014 VA examination of the knees indicated that there was not a history of recurrent patellar subluxation or dislocation. Minor posterior, and medial-lateral, insatiability to "1+" (0-5 millimeters) was shown in each knee upon examination. At the February 2020 VA examination, it was again noted that there was no history of recurrent subluxation in either knee but that there was a history of slight lateral instability in each knee. Joint stability testing at this examination showed no posterior or medial instability in either knee and "1+" (0-5 millimeters) medial and lateral instability in each knee. The above findings do not reflect the "moderate" degree of moderate recurrent subluxation or lateral instability required for a rating in excess of 10 percent under the criteria codified at DC 5257 prior to the revisions made effective from February 7, 2021, nor do the VA outpatient treatment records during the period for consideration. As for a rating in excess of 10 percent under the revisions made effective from February 7, 2021, such would, at a minimum, require there to have been an unrepaired or surgical failed repair of a complete ligament tear or surgical repair of the patellofemoral complex. Such manifestations are not demonstrated by the VA examination or outpatient treatment reports referenced above, nor is it claimed that such manifestations are present. As such, a rating in excess of 10 precent may not be assigned for service-connected disability in either knee with application of the provisions of DC 5257 in effective from February 7, 2021. With respect to the requirements of Correia, the February 2020 VA examination noted that there was objective evidence of pain on non-weight bearing and that passive motion was from 108 degrees of flexion to full extension in the right knee and 115 degrees of flexion to full extension in the left knee. Such findings do not indicate that increased compensation would be warranted for service connected right or left knee disability with consideration of Correia. As for the findings with respect to flare-ups required by Sharp, the August 2014 VA examination showed the Veteran describing knee flare-ups that involve constant pain that required a walker to ambulate and resulted in increased pain with increased walking. At the February 2020 VA examination, the Veteran described no knee flare-ups in the knees and the examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare ups. In short, such findings dot not suggest that entitlement to increased compensation would be warranted for the service-connected knee disabilities under the principles of Sharp. Finally, with regard to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40, 4.45 and the holdings in DeLuca and Mitchell, the August 2014 VA examination of the knees, after specifically citing the Mitchell decision, set forth as follows: [The] Veteran is in obvious distress. He has 90 degrees of flexion both knees on initial exam. He has difficulty with repetitive movement and has an additional decrease of 20 degrees of flexion bilaterally. With further flare up he would have increased pain and further decrease of flexion of at least another 10 degrees. At the most recent VA examination of the knees conducted in February 2020, the examiner found that there was no additional loss of motion in the knees with repetitive motion but noted that pain significantly limited functional ability with repeated use over time. With consideration of the above, the undersigned has considered the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40, 4.45 and the holdings in DeLuca and Mitchell but finds that increased compensation for the service connected knee disabilities under these principles is not warranted. D. Final Considerations In making the above rating determinations, the undersigned observes that she has carefully considered the Veteran's contentions with respect to the nature of the service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with these manifestations. However, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. As such, while the undersigned accepts the Veteran's testimony with regard to the matters, he is competent to address, she places more probative weight upon the competent medical evidence with regard to the specialized evaluation of functional impairment; namely, the assessments of the severity of disability due to the service-connected cervical spine and knee disabilities addressed above. Finally, the undersigned has considered the doctrine of reasonable doubt but finds that the preponderance of the evidence is against the assignment of increased compensation for the Veteran's service-connected cervical spine and knee disabilities. As such, increased ratings for these disabilities may not be granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert III. Entitlement to a total disability rating for compensation based on (TDIU) prior to August 11, 2014 A. Legal Criteria When the schedular rating is less than total, TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology and disabilities affecting a single body system are considered to be one disability. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether Unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" 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 the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to her service-connected disabilities, but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). B. Analysis A 100 percent rating for PTSD was granted effective from August 11, 2014; as such, TDIU cannot be assigned for the period beginning August 11, 2014. 38 C.F.R. § 4.16(a). However, the June 2019 remand noted that the matter of entitlement to TDIU based on disabilities other than PTSD for the period prior to August 11, 2014, was for consideration. Harper v. Wilkie, 30 Vet. App. 356 (2018). As such, the remand directed that the Agency of Original Jurisdiction (AOJ) adjudicate this matter consistent with the resolution of the remanded claims. This was accomplished by way of rating calculations memorialized in an October 2019 rating decision which established entitlement to TDIU based on combined service-connected disabilities effective from a time prior to the beginning of the appeal period, January 1, 2011. Accordingly, the claim for TDIU based on disabilities other than PTSD for the period prior to August 11, 2014, has been rendered moot. Sabonis, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.