Citation Nr: 21076705 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-10 228 DATE: December 27, 2021 ORDER Entitlement to a disability rating of 20 percent, though no higher, prior to May 4, 2021 for degenerative joint disease of the right knee with limitation of flexion is granted. Entitlement to a disability rating in excess of 20 percent from May 4, 2021 for degenerative joint disease of the right knee with limitation of flexion is denied. Entitlement to a disability rating of 30 percent, though no higher, for degenerative joint disease of the right knee with limitation of extension is granted. Entitlement to a disability rating of 20 percent, though no higher, for dislocated cartilage of the right knee is granted. Entitlement to a disability rating of 20 percent, though no higher, prior to May 4, 2021 for degenerative joint disease of the left knee with limitation of flexion is granted. Entitlement to a disability rating in excess of 20 percent from May 4, 2021 for degenerative joint disease of the left knee with limitation of flexion is denied. Entitlement to a disability rating of 30 percent, though no higher, for degenerative joint disease of the left knee with limitation of extension is granted. Entitlement to a disability rating of 20 percent, though no higher, for dislocated cartilage of the left knee is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Throughout the duration of the appeal, the Veteran's right knee disability was productive of, at worst, flexion limited to 50 degrees with pain, extension limited to 20 degrees with pain, flexion decreased to 30 degrees with flare ups, crepitus, X-ray evidence of arthritis, magnetic resonance imaging (MRI) evidence of a meniscal tear and cartilage dislocation with pain, swelling and locking; there was no objective evidence of ankylosis, subluxation or instability. 2. Throughout the duration of the appeal, the Veteran's left knee disability was productive of, at worst, flexion limited to 50 degrees with pain, extension limited to 20 degrees with pain, flexion decreased to 30 degrees with flare ups, crepitus, X-ray evidence of arthritis, MRI evidence of a meniscal tear and cartilage dislocation with pain, swelling and locking; there was no objective evidence of ankylosis, subluxation or instability. 3. Resolving reasonable doubt in the Veteran's favor the probative evidence of record indicates that the Veteran's service-connected disabilities have rendered him unable to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent, though no higher, prior to May 4, 2021 for degenerative joint disease of the right knee with limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5260. 2. The criteria for a disability rating in excess of 20 percent from May 4, 2021 for degenerative joint disease of the right knee with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DCs 5003, 5010, 5260. 3. The criteria for a disability rating of 30 percent, though no higher, for degenerative joint disease of the right knee with limitation of extension have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DCs 5003, 5010, 5261. 4. The criteria for a disability rating of 20 percent, though no higher, for dislocated cartilage of the right knee have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DC 5258. 5. The criteria for a disability rating of 20 percent, though no higher, prior to May 4, 2021 for degenerative joint disease of the left knee with limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DCs 5003, 5010, 5260. 6. The criteria for a disability rating in excess of 20 percent from May 4, 2021 for degenerative joint disease of the left knee with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DCs 5003, 5010, 5260. 7. The criteria for a disability rating of 30 percent, though no higher, for degenerative joint disease of the left knee with limitation of extension have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DCs 5003, 5010, 5261. 8. The criteria for a disability rating of 20 percent, though no higher, for dislocated cartilage of the left knee have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DC 5258. 9. The criteria for TDIU due to service-connected disabilities have been met. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1978 to February 1981 and from July 1983 to April 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board in September 2020. A transcript of that hearing has been associated with the claims file. This claim was previously remanded by the Board in January 2021 for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e., "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In order to be adequate, VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the May 2021 VA examiner who examined the Veteran's knees documented whether there was pain on movement in active and passive ranges of motion as well as pain in weight-bearing and in non-weightbearing positions in the ankles. The VA examiner also provided an opinion regarding flare ups of the ankles and estimated the limitation of motion with flare ups, repetitive motion and repeated use over time. As the May 2021 VA examination addressed flare ups, weight bearing, non-weight-bearing, and active and passive motion in accordance with the Correia and Sharp cases, a remand would be unnecessary. Finally, the Board observes that changes were made to several musculoskeletal rating codes in 38 C.F.R. § 4.71, effective February 7, 2021. Although recent changes included defining DCs 5257 and 5262 pertaining to knee instability, subluxation and impairment of the tibia and fibula, as the Board is awarding increased disability ratings under DCs 5258, 5260, and 5261 and finds that DCs 5257 and 5262 do not apply to the current knee disabilities, discussed below, adjudication of this claim is not prejudicial to the Veteran. 1. Right Knee and Left Knee During the pendency of this appeal, the Veteran's bilateral knee disabilities have been rated under 38 C.F.R. § 4.71a, DCs 5010 and 5260 under 38 C.F.R. § 4.71a. As set forth above, during the pendency of this appeal, the provisions of 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 76,453, 76,464 (Nov. 30, 2020), revised, 85 Fed. Reg. 85,523 (Dec. 29, 2020), revised, 85 Fed. Reg. 8142 (Feb. 4, 2021). Therefore, the Board will consider the Veteran's claims under both the former and revised rating criteria, and the more favorable criteria will be applied. If the revised criteria are more favorable, they will only be applied from February 7, 2021, when the regulations became effective. DC 5003 provides that degenerative arthritis that is established by X-ray findings will be 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. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. Id. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Id. DC 5010 states that arthritis, due to trauma, substantiated by X-ray findings, is to be rated as degenerative arthritis under DC 5003. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Under the former rating criteria prior to February 7, 2021, DC 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a, DC 5257 (2020). The words slight, moderate, moderately severe, marked, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence in reaching a decision that is "equitable and just." 38 C.F.R. § 4.6. Under the revised criteria from February 7, 2021, Diagnostic Code 5257 provides ratings for recurrent subluxation or instability, in which a 10 percent disability rating is assigned for sprain, incomplete ligament tear, or complete ligament tear causing persistent instability, without a prescription from a medical provider for an assistive device. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Under the revised criteria from February 7, 2021, Diagnostic Code 5257 also provides ratings for patellar instability, assigning a 10 percent disability rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for 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. A 30 percent rating is assigned for 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. Under both the former and revised criteria of DC 5258, dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a. Under both the former and revised criteria, DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Under both the former and revised criteria, DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Separate disability ratings are possible for arthritis with limitation of motion under DC 5003 (providing rating for arthritis) and instability of a knee under DC 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). When x-ray findings of arthritis are present and a veteran's knee disability is rated under DC 5257, the veteran would be entitled to a separate compensable rating under DC 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998). 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, and that a separate rating could also be provided for limitation of knee extension and flexion of the same knee joint. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Throughout the duration of the appeal, the probative evidence of record, including private and VA medical records, an October 2019 private Disability Benefits Questionnaire (DBQ) and October 2010, October 2017, December 2019 and May 2021 VA examinations, reflects that the Veteran's right knee disability was productive of, at worst, flexion limited to 50 degrees with pain, extension limited to 20 degrees with pain, flexion decreased to 30 degrees with flare ups, crepitus, X-ray evidence of arthritis, MRI evidence of a meniscal tear and cartilage dislocation with pain, swelling and locking. Similarly, throughout the duration of the appeal, the probative evidence of record demonstrates that the Veteran's left knee disability was productive of, at worst, flexion limited to 50 degrees with pain, extension limited to 20 degrees with pain, flexion decreased to 30 degrees with flare ups, crepitus, X-ray evidence of arthritis, MRI evidence of a meniscal tear and cartilage dislocation with pain, swelling and locking. The probative medical evidence of record does not reflect any objective evidence of ankylosis, subluxation or instability. Accordingly, the probative medical evidence of record more nearly approximates a higher 20 percent disability rating, though no higher, is warranted for right knee disability degenerative joint disease with limitation of flexion prior to May 4, 2021 and more nearly approximates a higher 20 percent disability rating, though no higher, is warranted for the left knee degenerative joint disease with limitation of flexion prior to May 4, 2021 under DCs 5003 and 5261. In addition, the probative evidence of record more nearly approximates the currently assigned 20 percent disability rating for the Veteran's right knee degenerative joint disease with limitation of flexion from May 4, 2021 and more nearly approximates the currently assigned 20 percent disability rating for the Veteran's left knee degenerative joint disease with limitation of flexion from May 4, 2021 under DCs 5003 and 5261. The objective medical findings of record do not reflect any findings of limitation of flexion to 15 degrees or less, even considering the limitations of function and motion noted throughout the record. Moreover, in considering the probative evidence of record demonstrating X-ray evidence of arthritis in both knees and the findings of limitation of extension to 20 degrees at worst, the assignment of a separate 30 percent disability rating, though no higher, is warranted for right knee degenerative joint disease with limitation of extension and a separate 30 percent disability rating, though no higher, is warranted for left knee degenerative joint disease with limitation of extension under DCs 5003 and 5261. The objective medical findings of record do not reflect any findings of limitation of extension to 30 degrees or more, even considering the limitations of function and motion noted throughout the record. In light of the probative evidence of record demonstrating meniscal tears in the right knee and left knee, VA examination findings of constant pain and swelling and the Veteran's reports of locking of the knee, an assignment of a separate 20 percent disability rating, though no higher, for dislocated cartilage of the right knee is warranted and a separate 20 percent disability rating, though no higher, for dislocated cartilage of the left knee is warranted under DC 5258. In this case, an MRI demonstrating these meniscal tears was not provided until July 2019 and the May 2021 VA examination noted objective findings of swelling and effusion in both knees and that meniscal tears had contributed to increase in synovial fluid response and thus, these findings relate to the entire appeal period. The Board observes this is the maximum possible rating available under DC 5258. Although the probative evidence of record reflects pain and limitation of function in the knees, there have been no findings of pain or other limitations causing additional limitation of extension to 30 degrees or more, limitation of flexion to 15 degrees or less, or any findings that were akin to ankylosis of the right knee or left knee. In fact, additional limitation of motion with repeated use over time and flare ups in the December 2019 and May 2021 VA examinations was considered in assigning the current 20 percent disability ratings for the right and left knees based on limitation of flexion. In addition, the October 2019 DBQ range of motion findings demonstrated the most limitation of extension in the record, even considering additional limitations in all the VA examinations during the appeal period. Finally, although ankylosis was noted in the October 2019 DBQ, the Board observes that this finding is inconsistent with the several VA examinations during the appeal demonstrating a limited range of motion in both knees and is inconsistent with the range of motion findings the October 2019 DBQ, which demonstrate a range of motion in both the right and left knees from 20 to 100 degrees. Hence, the VA examinations and October 2019 DBQ findings all reflect the Veteran's bilateral knees reflected ranges of motion that were not akin to ankylosis. Thus, in considering his complaints of pain, in conjunction with 38 C.F.R. § 4.40, 4.45, 4.59, and consistent with the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board finds the evidence does not support disability ratings in excess of the 20 percent ratings currently assigned for right knee and left knee based on limitation of flexion and does not support disability ratings in excess of the 30 percent disability ratings assigned for the right knee and left knee based on limitation of extension. See Voyles v. Brown, 5 Vet. App. 451, 454 (1993); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Other potentially applicable DCs also have been considered. As the Veteran's service-connected right knee disability does not reflect findings of instability, subluxation, ankylosis or impairment of the tibia or fibula at any time during the pendency of the appeal, DCs 5256, 5257, 5258 and 5262 do not apply. The evidence weighs against a finding of ankylosis. As noted above, although ankylosis was noted in the October 2019 DBQ, this finding is inconsistent with the repeated findings in the VA examinations during the pendency of the appeal demonstrating a limited range of motion and inconsistent with the October 2019 DBQ itself, which also noted the Veteran had range of motion in both the right and left knees from 20 to 100 degrees. The Board has considered the lay statements of record regarding the severity of the Veteran's right knee and left knee disabilities and has relied on these reports in determining appropriate disability ratings under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Accordingly, the Veteran's right knee degenerative joint disease with limitation of flexion warrants a disability rating of 20 percent, though no higher, prior to May 4, 2021 and does not warrant a disability rating in excess of 20 percent from May 4, 2021 under DC 5260. 38 C.F.R. §§ 4.3, 4.7, 4.71a; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In addition, the Veteran's left knee degenerative joint disease with limitation of flexion warrants a disability rating of 20 percent, though no higher, prior to May 4, 2021 and does not warrant a disability rating in excess of 20 percent from May 4, 2021 under DC 5260. Id. The Veteran's right knee degenerative joint disease with limitation of extension warrants the assignment of a separate 30 percent disability rating, though no higher, under DC 5261 and the left knee degenerative joint disease with limitation of extension warrants the assignment of a separate 30 percent disability rating, though no higher, under DC 5261. Id. Finally, a separate 20 percent disability rating, though no higher, for dislocated cartilage of the right knee and a separate 20 percent disability rating, though no higher, for dislocated cartilage of the left knee are warranted under DC 5258. Id. TDIU Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. 38 C.F.R. § 4.16(a). If there are two or more 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. Id. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). 2. Entitlement to a TDIU due to service-connected disabilities In light of the decision above, the Veteran now meets the preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) during the entire period of the appeal. VA medical records demonstrate the Veteran reported working as an ER nurse per a January 2005 VA outpatient treatment report and then reported working at a Wellness Center in 2017 per a March 2017 VA outpatient treatment report. In an October 2017 VA examination he reported that he was retired. Subsequent VA medical records demonstrate the Veteran reported worked full time in December 2019 and then reportedly was working part time at a desk job at a gym in July 2020; however, the gym was closed due to the pandemic. An August 2020 VA outpatient treatment report reflects the Veteran was found to be unable to work due to an illness for four days, though no disability was specified. When viewed as a whole, the evidence supports a finding that the Veteran was not capable of substantially gainful employment as a result of his service-connected disabilities. In the October 2010 VA examination, the VA examiner found that the effect of the condition on the Veteran's usual occupation was that he could not do work that required him to be on his feet for long periods or lifting and bending. In the October 2017 VA examination, the Veteran reported he was retired and the functional impact on employment included the inability to sit or stand for too long due to discomfort from knee pain and noted that he experienced knee pain with prolonged walking. In the December 2017 VA examination, the right and left knee disabilities were found to affect the Veteran's ability to perform occupational tasks, including no prolonged standing, sitting or walking and limited the use of stairs. The May 2021 VA examination noted the functional impact of the Veteran's knee disabilities included limited mobility due to knee pain and swelling. The May 2021 VA examination also specified the various limitations due to all the Veteran's service-connected conditions. The VA examiner concluded that the Veteran's migraines caused difficulty in concentrating at task of work during attacks and his lumbar spine caused difficulty in frequent bending, lifting heavy items, prolonged sitting and prolonged standing. The examiner also found that hypertension limited performance in strenuous activities like heavy lifting, running, and climbing ladders and stairs, and his left and right knee disabilities caused difficulty in prolonged walking, running, standing and climbing ladders and stairs. Resolving all doubt in favor of the Veteran, the probative evidence of record, taken together, demonstrates that he was unemployable or capable of no more than marginal employment due to his service-connected disabilities. Accordingly, the criteria for a TDIU are met. 38 C.F.R. § 4.16(a). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.