Citation Nr: 21076808 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-33 171 DATE: December 27, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for right shoulder degenerative arthritis is denied. Entitlement to a rating in excess of 10 percent prior to October 1, 2018 (excluding a temporary total evaluation from August 28, 2017, to September 30, 2018) for right knee residuals of a meniscal tear is denied. Entitlement to a disability rating of 60 percent, but not higher, from October 1, 2018 for right knee residuals of a meniscal tear status post total knee replacement is granted. Entitlement to compensation for total disability based on individual unemployability (TDIU) due to service-connected disability prior to April 16, 2021 is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right shoulder disability did not manifest as arm limitation of motion to midway between side and shoulder level or arm limitation of motion to 25 degrees from side, and it did not manifest as ankylosis or impairment of the humerus with recurrent dislocation at scapulohumeral joint with frequent episodes and guarding of all arm movements. 2. The evidence of record does not support a finding that the Veteran's right knee disability warrants a rating in excess of 10 percent prior to October 1, 2018 (excluding a temporary total evaluation from August 28, 2017, to September 30, 2018). 3. The evidence is at least in relative equipoise for a finding that the Veteran's right knee disability was manifested by severe painful motion or weakness in the affected extremity since October 1, 2018. 4. The most probative evidence of record does not reflect that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to April 16, 2021. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for right shoulder degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5202 2. The criteria for a disability rating in excess of 10 percent for right knee meniscus tear prior to October 1, 2018 (excluding a temporary total evaluation from August 28, 2017, to September 30, 2018) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, § 4.71a, Diagnostic Codes 5259, 5055. 3. The criteria for a disability rating of 60 percent, but not higher, for right knee meniscus tear from October 1, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, § 4.71a, Diagnostic Code 5055. 4. The criteria for entitlement to a TDIU prior to April 16, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2011, July 2014, and March 2017 rating decisions. In October 2019 and February 2021, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. The Board notes that the Veteran's appeal included the issues of entitlement to service connection for a left shoulder disability. In a May 2021 rating decision, the Regional Office (RO) granted service connection a left shoulder disability. The Agency of Original Jurisdiction's (AOJ) grant of service connection constitutes a full award of the benefits sought on appeal with respect to this issue. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, that matter is no longer on appeal, and no further consideration is necessary. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (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). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Right Shoulder The Veteran's right shoulder disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5202. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran is left hand dominant, therefore the right arm is evaluated as the minor arm. Traumatic arthritis under Diagnostic Code 5010 is rated analogous to degenerative arthritis under Diagnostic Code 5003. Degenerative arthritis, when 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. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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 Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a , Diagnostic Code 5003. For purposes of rating disability from arthritis, the shoulder is considered a major joint. 38 C.F.R. § 4.45(f). The diagnostic code that focuses on limitation of motion of the shoulder is Diagnostic Code 5201. Under Diagnostic Code 5200, which pertains to ankylosis of the scapulohumeral articulation, a 40 percent rating is warranted where there is unfavorable ankylosis that is intermediate between favorable and unfavorable. A 50 percent rating is warranted where there is unfavorable ankylosis with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5200. Under Diagnostic Code 5201, limitation of motion of the minor arm at the shoulder level (i.e., motion limited to 90 degrees) provides a 20 percent rating. Limitation of motion midway between the side and the shoulder level (i.e., motion limited from 45 to 90 degrees), is also assigned a 20 percent evaluation. A maximum 30 percent evaluation is warranted for the minor arm when limitation of motion is limited to 25 degrees from the side. 38 C.F.R. § 4.71a (2016). A veteran is only entitled to a single disability rating under Diagnostic Code 5201 as that diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). Diagnostic Code 5202 provides for a 20 percent rating for the minor arm if there are infrequent recurrent episodes of dislocation of the scapulohumeral joint with guarding of movement only at the shoulder level, or malunion of the humeral head with moderate deformity; or for frequent recurrent episodes of dislocation of the scapulohumeral joint with guarding of all arm movements, or malunion of the humeral head with marked deformity. A 40 percent rating is warranted for the minor arm if there is fibrous union of the humerus. A 50 percent rating is warranted for the minor arm for nonunion of the humerus, or false flail joint. A maximum 70 percent rating is warranted for the minor arm for loss of head of humerus, or flail shoulder. 38 C.F.R. § 4.71a, Diagnostic Code 5202. In this case, the RO granted service connection for the Veteran's right shoulder disability in a July 2014 rating decision. The Veteran's right shoulder disability was evaluated at 20 percent disabling for recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. The Veteran contends that his right shoulder disability warrants a rating in excess of 20 percent. The Veteran was afforded a VA examination in April 2014. The VA examiner diagnosed the Veteran with right shoulder degenerative arthritis. The examiner noted that both the right shoulder flexion and right shoulder abduction end at 90 degrees. The examiner stated that the right shoulder posttest flexion and abduction end at 90 degrees. The examiner also indicated that there are contributing factors of pain, but no weakness, fatigability and/or incoordination. The examiner noted that there was not a recurrent history of dislocation and rated the Veteran's right shoulder as positive for crank apprehension and relocation. The Veteran was given further examinations in January 2017, August 2018, and September 2018. These VA examination reports were found by the Board to not fully comply with Correia v. McDonald, 28 Vet. App. 156 (2016). In this regard, the April 2014 VA examinations did not include range of motion testing on passive range of motion, weight-bearing, and non-weight-bearing. In a September 2018 VA examination report, the examiner noted that the Veteran exhibited pain on passive motion and non-weight-bearing; however, he did not provide an estimate of range of motion lost in terms of degrees. In addition, in a January 2017 VA examination report, the examiner noted pain on examination that caused functional loss with flexion and abduction. In August 2018 and September 2018 VA examination reports, the examiners also noted pain on examination that caused functional loss with flexion, abduction, external rotation, and internal rotation. However, the examiners did not identify the points at which pain was observed The Board also notes that the August 2018 and September 2018 VA examination reports did not adequately address the Veteran's reported flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In this regard, in the August 2018 examination report, the examiner stated that he was unable to describe the Veteran's functional loss with repetitive use and flare-ups in terms of range of motion. However, the examiner did not explain why the Veteran's lay statements regarding his variable degree of functional impairment provided insufficient information to render an opinion. In the September 2018 VA examination report, the examiner also indicated that he was unable to estimate any additional degree of range of motion loss during repetitive use and flare-ups without resorting to mere speculation. However, the examiner provided no rationale for his inability to provide such an opinion. The Veteran was afforded another VA examination in September 2020. The September 2020 examiner noted that the Veteran reported having flare-ups 1 to 2 times every 2 to 3 months and that his symptoms felt "like gout." The examiner also provided estimated range of motion findings for flare-ups. However, there is no indication that he asked the Veteran to identify the duration of flare-ups, precipitating factors, and alleviating factors. As such, the examination report does not adequately describe the functional effects of the Veteran's flare-ups. Id. at 34. The Veteran was given another VA examination in April 2021, during which he was diagnosed with bilateral rotator cuff tendonitis, bilateral glenohumeral joint osteoarthritis, bilateral acromioclavicular joint osteoarthritis, and bilateral degenerative joint arthritis. The Veteran reported experiencing flare ups. Flare-ups of the right shoulder occur 3-4 times a day. The right shoulder flare-ups are severe. The right shoulder flare-ups last 4-5 minutes. The right shoulder flare-ups are precipitated when he reaches up for things above his head, picking things off the floor, and reaching backwards. The right shoulder flare-ups are alleviated by pain medication (pills or creams). Flare-ups of the left shoulder occur 3-4 times a day. The left shoulder flare-ups are severe. The left shoulder flare-ups last 4-5 minutes. The left shoulder flare-ups are precipitated by reaching for things above his head, lifting things off of the floor, and reaching backwards. The left shoulder flare-ups are alleviated by pain medications. The Veteran reported functional loss. The Veteran claims that they cannot lift or do any work above the shoulder, lifting the arms above the head is painful, carrying heavy bags on both shoulders, swimming, surfing, and diving are difficult. Both the Veteran's right shoulder and left shoulder were found to have abnormal range of motion (ROM). The active ROM for the Veteran's left shoulder was measured as flexion endpoint at 80 degrees, abduction endpoint at 80 degrees, internal rotation endpoint at 60 degrees, and external rotation endpoint at 60 degrees. Pain was noted on flexion, abduction, internal rotation, and external rotation. The active ROM for the Veteran's right shoulder was measured as flexion endpoint at 70 degrees, abduction endpoint at 70 degrees, internal rotation endpoint at 40 degrees, external rotation endpoint at 40 degrees. Pain was noted on flexion, abduction, internal rotation, and external rotation. Passive ROM for the shoulders was the same as the active ROM for each respective shoulder. The Veteran's right shoulder showed evidence of pain on active motion and passive motion that caused functional loss. Neither shoulder showed signs of crepitus, localized tenderness, or pain on palpitation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing, no additional ROM loss was measured. The Veteran's bilateral shoulders were not being tested immediately after a flare up. Evidence did suggest that pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups. The Veteran's right shoulder flare up ROM was estimated as flexion endpoint to 60 degrees, abduction to 60 degrees, internal rotation to 50 degrees, and external rotation to 50 degrees. No ankylosis was noted on either of the Veteran's shoulders. All testing of the Veteran's bilateral rotator cuffs were found to be positive. The Veteran's right shoulder was found to have instability, dislocation, or labral pathology. The Veteran was noted as experiencing a functional impact, due to the Veteran's condition he is not able to lift or do any work above his shoulder, lifting his arm above his head is painful, carrying heavy bags on both shoulders, swimming, and diving. The examiner was unable to provide any retrospective opinions The Board finds that a rating in excess of 20 percent for the Veteran's right shoulder disability is not warranted. In view of the above, the Board finds that the criteria to assign an initial schedular rating in excess of 20 percent for the Veteran's right shoulder disability have not been met or approximated. As described above, in the Veteran's most recent exam (April 2021 VA examination) the Veteran's demonstrated right shoulder flexion is 0 to 60 degrees; his external rotation is 0 to 40 degrees; his abduction is 0 to 60 degrees, his internal rotation is 0 to 40 degrees. The Veteran's measurements in range of motion were not severe enough to warrant a rating in excess of 20 percent, even when considering range of motion with repetitive use over time and pain during flare ups. Further, the evidence does not show any fibrous union of the humerus, nonunion of the humerus, or loss of humerus head, any of which would provide a basis for a higher evaluation. The Board notes that the Veteran had shoulder instability or dislocation. In any event, frequent episodes of dislocation and guarding of all arm movements are rated as 20 percent disabling, which is the current evaluation assigned. The Board has also considered the applicability of other potentially relevant diagnostic codes for rating the Veteran's service-connected right shoulder disability but finds that no higher rating is assignable. During the appeal period, the Veteran has not been diagnosed with ankylosis, or limitation of motion limited to 25 degrees from the side, or dislocation, nonunion, or malunion of the clavicle or scapula. Therefore, a higher rating under Diagnostic Code 5200 and Diagnostic Code 5201 is not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Codes 5200 and 5201. With regard to whether the Veteran is entitled to a rating higher than 20 percent for the right shoulder under Diagnostic Code 5010 for arthritis, the Board concludes that the Veteran is not entitled to a rating in excess of 20 percent, as there is no evidence that limitation of motion due to arthritis has been limited to 25 degrees from the side as is necessary for a 30 percent evaluation for a minor upper extremity. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an evaluation in excess of 20 percent for the Veteran's right shoulder disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain during the VA examinations. However, the effect of the pain in the Veteran's shoulder is contemplated in the currently assigned disability evaluations. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Board has considered the Veteran's statements concerning the symptomology of his right shoulder disorder and his assertion that the pain warrants an increased rating above 20 percent. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he can observe, such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Whether lay evidence is considered competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). An opinion concerning the relationship between the Veteran's symptoms and the extent of the Veteran's right shoulder disability is of a medically complex nature. That diagnosis and analysis requires medical training and experience, which the Veteran has not demonstrated he possesses. Therefore, the Board finds that the Veteran is not competent to provide an opinion as to the rating assignment for the severity level of his right shoulder disability. The Board finds the objective evidence provided by the VA examiners to be more persuasive than the Veteran's contentions that an increase rating in excess of 20 percent is warranted. The assigned 20 rating is appropriate. A rating in excess of 20 percent is not warranted. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (holding that the minimum compensable rating provided by the diagnostic code is to be assigned for painful motion). As such, the Veteran is not found to meet the criteria for a higher initial rating. Thus, the Board concludes that the Veteran's right shoulder disability has not more closely approximated the criteria for a rating in excess of 20 percent. Throughout the appeal period, the Veteran's right shoulder disability did not manifest as arm limitation of motion to midway between side and shoulder level or arm limitation of motion to 25 degrees from side, and it did not manifest as ankylosis or impairment of the humerus with recurrent dislocation at scapulohumeral joint with frequent episodes and guarding of all arm movements. Thus, a rating in excess of 20 percent is not warranted, there is no basis for staged rating of the Veteran's disability, and the preponderance of the evidence is against a higher rating for the right shoulder disability. Therefore, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Right Knee Residuals of a Meniscal Tear The Veteran's right knee residuals of a meniscus tear is currently rated as 10 percent prior to October 1, 2018 (excluding a temporary total evaluation from August 28, 2017, to September 30, 2018), 30 percent from October 1, 2018 to April 16, 2021 and 60 percent thereafter. The Veteran's right knee disability is rated under diagnostic code 5055 and 5259. Pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Code 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 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. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensable (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 (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 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. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. The Veteran was given VA examinations in December 2009, January 2011, and October 2013. The Board has previously found that these VA examinations do not fully comply with Correia v. McDonald, 28 Vet. App. 156 (2016). In this regard, the examiners did not include range of motion testing on passive range of motion, weight-bearing, and non-weight-bearing. The Veteran was also given VA examinations in December 2016 and August 2018. In these VA examinations, the examiner noted that there was pain on examination for flexion that caused functional loss and that there was pain on examination for flexion and extension that caused functional loss. However, the examiners did not identify the points at which pain was observed. The Veteran was afforded a VA examination in September 2020 during which the examiner noted that the Veteran reported having flare-ups when climbing stairs and with prolonged standing. However, the examiner did not elicit relevant information from the Veteran regarding the duration of his flare-ups or any alleviating factors, as directed by the Board in October 2019. Therefore, the Board remanded the claim to obtain an additional VA examination and medical opinion. The Veteran was given another VA examination in April 2021. The Veteran was diagnosed with right knee disabilities of right knee meniscal tear, and right knee anterior cruciate ligament tear as well as bilateral joint osteoarthritis and bilateral degenerative arthritis. The Veteran reported flare ups occur 4-5 times daily. The flare ups last 10-15 minutes. The right knee flare-ups are precipitated by prolonged standing and walking long distances (shopping). The right knee flare-ups are alleviated by sitting down to rest, elevating his legs, and taking pain medications. The Veteran reported functional loss as he is unable to climb up and down stairs, no lifting heavy items, no prolonged standing or walking, no prolonged driving and he is not able to kneel on his right knee. There was no history of instability, recurrent subluxation or frequent effusions noted. The Veteran's right knee has abnormal ROM that contributes to functional loss. Active ROM for the right knee was measured as flexion endpoint at 80 degrees and extension endpoint at 0 degrees. Both flexion and extension were noted as causing pain. Passive ROM was measured and found to be the same as active ROM. There examiner indicated that there was evidence of pain on weight bearing, active motion, on reset/non-movement that causes a functional loss. There was no objective evidence of crepitus or localized tenderness or pain on palpitation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing. No additional loss of function or ROM was measured. The Veteran was not examined during a flare up, but there was evidence to suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups caused by pain. The examiner estimated that the ROM would be flexion endpoint at 70 degrees and extension endpoint at 0 degrees. The examiner noted that the Veteran experiences disturbed locomotion with less movement than normal. There was no ankylosis of the right knee joint. The examiner found that there was no subluxation or persistent instability but that there was a ligament tear that had been successfully repaired. The examiner did find that the Veteran experiences a functional impact as, due to his condition, the Veteran could not perform his duties as a city carrier (USPS) and couldn't climb stairs. No prolonged standing and he is not able to drive for long periods of time, he could not lift heavy parcels and he now walks with a limp. The examiner was unable to render a retrospective opinion at this time. The information requested for review were objective findings by another medical provider from years ago, therefore making it difficult to render a reliable assessment and opinion. A. Prior to October 1, 2018 Prior to October 1, 2018, the Board finds that the evidence does not support a finding that the Veteran is entitled to a rating in excess of 10 percent for their right knee disability. The Veteran, through their representative has contended that the August 2018 VA examiner noted that the diagnostic reports for the Veteran is found to have a moderately severe level of degradation about the knee in 2010 and "extensive" damage only three years later on the September 2013 MRI from Kaiser. The Veteran then undergoes a total knee replacement in 2017 and still reports that the pain as a 10/10 in the August 2018 examination. However, the Board finds this contention unpersuasive for the following reasons. First, the moderately severe level of degradation refenced is regarding the narrowing of the medial compartment right knee and not regarding the functional impact that the Veteran experiences as a result of this narrowing. Secondly, the Veteran could not be rated under diagnostic code 5055 for a total knee replacement until the Veteran underwent surgery for a total knee replacement in August 2017. Prior to August 2017 the Veteran's right knee disability is rated under diagnostic code 5259 for a meniscal tear at 10 percent disabling, the maximum rating under the schedule. As such, the Board finds that the Veteran's entitlement to a rating in excess of 10 percent prior to October 1, 2018 (excluding a temporary total evaluation from August 28, 2017, to September 30, 2018) for right knee residuals of a meniscal tear is not warranted. B. Since October 1, 2018 From October 1, 2018 to April 16, 2021, the Board finds that, after resolving all doubt int eh Veteran's favor, entitlement to a disability rating of 60 percent, but not higher, is warranted. The Veteran was in possession of a temporary total evaluation from August 28, 2017, to September 30, 2018 under diagnostic code 5055 for his total right knee replacement. The minimum rating following replacement of a knee joint is 30 percent. A Higher evaluation of 60 percent is not warranted unless the evidence shows severe painful motion or weakness in the affected extremity. In August 2018, the Veteran was given a VA examination as stated above. Here the Veteran reported right knee pain at his right knee lower patella and anterior medial joint line. He reported that even after surgery, he had pain in the joints. The examiner noted that the Veteran was still in the recovery phase. He has had physical therapy. He stated the pain was rated as 6/10 to 10/10. The pain was made worse with walking and getting in cars. The Veteran reported flare ups for the right knee where the pain increased up to 10/10 walking in certain positions. On examination, pain was noted in both flexion and extension. The Veteran reported that during flareups the loss of ROM is variable, depending on how strenuously the joint was used during a flared up. At its worst he cannot move it at all due to pain. The Veteran was given another VA examination in April 2021 as stated above. Here the Veteran reported severe right knee flare ups causing pain. Reported flare ups occur 4-5 times daily. The flare ups last 10-15 minutes. The right knee flare-ups are precipitated by prolonged standing and walking long distances (shopping). The right knee flare-ups are alleviated by sitting down to rest, elevating his legs, and taking pain medications. Pain was noted to limit the Veteran's right knee ROM in both flexion and extension. The examiner found chronic residuals consisting of severe painful motion or weakness. In view of the totality of the evidence, including the recognition of the Veteran's reported flare ups, levels of pain and findings of chronic residuals consisting of severe painful motion or weakness, the Board finds the evidence is at least in relative equipoise regarding this issue. When the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. As such, the Board finds that a disability rating of 60 percent, but not higher, since October 1, 2018 for right knee residuals of a meniscal tear status post total knee replacement is warranted. 3. TDIU The Veteran seeks a TDIU rating. The evidence shows that his service-connected disabilities have been rated as 100 percent disabling since April 16, 2021; thus, the Board shall consider whether entitlement to a TDIU is warranted prior to this date. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Employment may be marginal even when the Veteran's earned income exceeds the poverty threshold if the Veteran is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Advancing age and nonservice-connected disability may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. Instead, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie held that the following factors are for consideration: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). From April 16, 2021, the Veteran's combined disability rating is 100 percent. From October 1, 2018 to April 16, 2021, the Veteran's combined disability rating was at least 80 percent and the ratings include a now 60 percent rating for a right knee disability. Accordingly, the Veteran satisfies the schedular requirement for consideration of TDIU prior to April 16, 2021. The evidence shows that the Veteran last worked from 2010 to 2015 as a postal worker and has training as a passport clerk. The Veteran submitted VA form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit) received August 2020, which indicated the reason for termination of employment was optional retirement. In a September 2020 VA examination, the Veteran reported retiring from the United States Postal Service (USPS) employment due to injury on the job. With respect to whether the Veteran is unemployable due to the service-connected disabilities, the record contains various medical opinions that show that the service-connected disabilities impact the Veteran's employment prior to April 16, 2021. VA examination reports show that the Veteran's knees and lower leg disabilities impact the ability to work from constant pain and stiffness in both knees made worse by walking, bending, lifting, climbing stairs, or prolonged sitting or standing, making ambulatory work and desk work painful and difficult. The Board finds that the preponderance of evidence is against the claim for entitlement to a TDIU prior to April 16, 2021. Specifically, the Veteran has experienced occupational impairment as a result of his service-connected disabilities, which is reflected in his combined total rating of at least 80 percent since October 6, 2016. However, the preponderance of the evidence is against a finding that he is unable to secure or follow substantially gainful employment due to the service-connected disabilities. Rather, while VA examiners noted that the Veteran's service-connected disabilities would impact his employability by resulting in some limitations, those limitations described would not prevent or prohibit employment consistent with the Veteran's education, work history, and mental and physical abilities. Overall, the Board recognizes that the Veteran has not worked since 2015, however, he is not precluded from all forms of substantially gainful employment as he has the physical and mental abilities to perform work as a telemarketer, or any type of clerical work. The Board acknowledges the Veteran's September 2021 statement that the on-the-job injury was due to the service-connected right knee, however any nonservice-connected disability cannot be the basis for a grant of a TDIU. Additionally, the evidence shows that the Veteran left work from the USPS in 2015 due to an elective retirement. Thus, although the Veteran's service-connected disabilities cause some functional impairment prior to April 16, 2021, as evidenced by his combined disability rating, they were not, in and of themselves, shown to preclude his participation in all forms of substantially gainful employment. Given these reasons, the preponderance of the evidence is against entitlement to a TDIU rating prior to April 16, 2021. The benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.16(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). A. HODZIC Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lent, Edward 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.