Citation Nr: 21077120 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 11-11 252 DATE: December 28, 2021 ORDER From September 29, 2008 an initial increased rating of 20 percent (but not higher) is granted for service-connected chondromalacia patella of the right knee with traumatic arthritis (right knee disability). From September 29, 2008 an initial increased rating of 20 percent (but not higher) is granted for service-connected chronic right ankle strain (right ankle disability). From September 29, 2008 an initial increased rating of 20 percent (but not higher) is granted for service-connected chronic left ankle strain (left ankle disability). A total disability rating based on individual unemployability (a TDIU rating) prior to April 10, 2017 is denied. FINDINGS OF FACT 1. The November 2008 medical examiner failed to provide some required information about the Veteran's right knee condition; however, remanding orthopedic issues for attempts to obtain information retrospectively can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. Therefore, the Board will not place the burden of the examiner's failure on the Veteran by delaying the claim; instead, the Board will infer (as is not inconsistent with the rest of the evidence of record) that the missing measurements from the November 2008 examination would have supported an initial increased rating of 20 percent disability rating for the Veteran's right knee condition from September 29, 2008. 2. The November 2008 medical examiner failed to provide some required information about the Veteran's right and left ankle conditions; however, remanding orthopedic issues for attempts to obtain information retrospectively can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. Therefore, the Board will not place the burden of the examiner's failure on the Veteran by delaying the claim; instead, the Board will infer (as is not inconsistent with the rest of the evidence of record) that the missing measurements from the November 2008 examination would have supported an initial increased rating of 20 percent disability rating for the Veteran's right and left ankle conditions from September 29, 2008. 3. The evidence of record indicates that the Veteran was gainfully employed from August 2003 until April 10, 2017; thus, his service-connected disabilities did not preclude him from obtaining or maintaining substantially gainful employment prior to April 10, 2017. CONCLUSIONS OF LAW 1. From September 29, 2008, the criteria have been met for an increased disability rating of 20 percent (but not higher) for a right knee disability. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5010, 5260, 5261. 2. From September 29, 2008, the criteria have been met for an increased disability rating of 20 percent (but not higher) for a right ankle disability. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 3. From September 29, 2008, the criteria have been met for an increased disability rating of 20 percent (but not higher) for a left ankle disability. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 4. Prior to April 10, 2017, the criteria have not been met for a TDIU rating. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to November 1997. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision (which granted separate 10 percent disability ratings for the right knee disability, right ankle disability, and left ankle disability) of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely initiated the appeal in April 2004 and perfected it in April 2011. In March 2017, a Board hearing was held before the undersigned and a transcript of that hearing has been associated with the claims file. The Board remanded these matters for additional development in June 2017. In April 2018, the Board awarded an increased rating of 20 percent (effective November 9, 2011) for the right ankle disability but denied an increase for the right knee and left ankle disabilities. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In a May 2019 Order, the Veterans Court granted a Joint Motion for Partial Remand (JMPR) and thereby vacated and remanded the decisions back to the Board for development consistent with the terms of the JMPR. [Note, the Board's favorable findings of a 20 percent increase for the right ankle disability and a separate 20 percent rating for instability of the right knee remained undisturbed.] The Board remanded the issues in November 2019. In June 2020, the RO granted the Veteran a 20 percent disability rating for the right ankle, effective September 5, 2016. In September 2020, the Board again remanded the issues, and the RO granted an earlier effective date of April 2017 for TDIU. In March 2021, the Board once again remanded the issues on appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. From September 29, 2008, an initial increased rating of 20 percent (but not higher) is granted for a service-connected right knee disability. Legal Criteria During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, under DC 5055, prosthetic replacement of a knee joint is rated as 100 percent disabling for one year following implantation of the prosthesis. The one-year total rating begins after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, a 60 percent rating will be assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DCs 5256, 5260, 5261, or 5262. The minimum disability rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a. As of February 7, 2021, under the amended criteria of DC 5055, the prosthetic replacement of a knee joint is rated as 100 percent disabling for four months following implantation of the prosthesis or resurfacing. Thereafter, a 60 percent rating will be assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DCs 5256, 5260, 5261, or 5262. The minimum disability rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a. At the conclusion of the 100 percent evaluation period, the rater is to evaluate resurfacing under DCs 5256-5262 and there is no minimum evaluation for resurfacing. DC 5256 provides for a 40 percent rating for unfavorable ankylosis with knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is provided for unfavorable ankylosis with the knee in flexion between 20 degrees and 45 degrees. A 60 percent rating is provided for extremely unfavorable ankylosis with the knee in flexion at an angle of 45 degrees or more DC 5260 provides ratings based on limitation of flexion of the leg. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. The maximum 30 percent rating is warranted for flexion limited to 15 degrees. DC 5261 provides ratings based on limitation of extension of the leg. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. The maximum 50 percent rating is warranted for extension limited to 45 degrees. Prior to the regulatory change, DC 5262 provided a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating for moderate knee or ankle disability; a 30 percent rating for marked knee or ankle disability; and a 40 percent rating for nonunion of the tibia and fibula with loose motion requiring a brace. The Board notes that terms such as 'slight,' 'moderate,' 'severe,' and 'marked' are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. For diagnostic codes that are based on limitation of motion, VA must consider assigning a higher rating for functional loss, including functional loss due to flare-ups or the factors listed below. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). These factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. For diagnostic codes that are based on limitation of motion, pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). These rules have been considered in the analysis below. Factual Background During a November 2008 examination, the Veteran reported that his right knee was weak and stiff. He reported that he had pain on standing, walking long periods, going up steps, and while exercising. The examiner diagnosed the Veteran with arthritis and chondromalacia patella of the right knee. He found that the Veteran had normal range of motion for both flexion and extension of his right knee but had pain throughout range of motion testing. He noted that the right knee was limited by repetitive use that caused pain. The examiner did not indicate whether the examination was being conducted during a flare up or whether the Veteran's right knee range of motion would be limited with repetitive use over time. Stability testing at that time showed that the right knee was within normal limits. During a August 2016 VA examination, the Veteran's right knee flexion was 0 to 110 degrees and his extension was 110 to 0 degrees. The examiner noted that the Veteran had pain on both flexion and extension, but the pain did not cause functional loss. The examiner found no ankylosis in the right knee. The Veteran was able to perform repetitive use testing with at least 3 repetitions without any additional loss of function. The examiner explained that the Veteran was not being examined immediately after repetitive use over time but that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner opined that pain from repetitive use over time would cause functional loss but was unable to describe in terms of range of motion. The examiner also explained that the Veteran was not being examined during a flare-up but that the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. The examiner opined that pain and weakness during a flare-up would cause functional loss but was unable to describe in terms of range of motion. During the March 2017 hearing, the Veteran testified that he had instability, stiffness, and painful arthritis in his right knee. The Veteran and his wife demonstrated how difficult it was for him to walk in the morning because of his knee symptoms. He further testified that because of his knee pain and weakness, he had instability and had fallen a few times. The Veteran indicated he had constant pain and that on occasion a flare up would cause him to wake up from his sleep. He testified that he had flare ups that caused significantly more pain about half the days of a month. During a November 2017 VA examination, the Veteran was diagnosed with right knee chondromalacia patella and rheumatoid arthritis. The examiner noted that the Veteran used "NSAIDs, opioids, and [an] occasional heating pad" to address his right knee symptoms. The examiner noted that the Veteran was "very guarded" for range of motion testing and could not complete the entire study. The examiner stated that the Veteran was unable to test for range of motion testing, stating that the Veteran's right knee was too painful. The examiner noted that the Veteran had an antalgic gait, had to use a cane, and had difficulty with "transfers." For stability testing, the examiner was unable to perform because of right knee pain. The examiner noted that the Veteran did not have and never has had a meniscus condition. During a January 2018 examination the Veteran was diagnosed with degenerative arthritis and knee joint osteoarthritis of the right knee. The examiner noted that the Veteran's range of motion was normal for the right knee, explaining that he had full flexion and extension. The examiner further noted that the Veteran had pain, but that the pain did not cause functional loss. The Veteran was able to perform repetitive use testing with at least 3 repetitions without any additional loss of function. The examiner explained that the Veteran was not being examined immediately after repetitive use over time and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner opined that pain from repetitive use over time would cause functional loss but was unable to describe in terms of range of motion. The examiner also explained that the Veteran was not being examined during a flare-up and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. The examiner opined that pain during a flare-up would cause functional loss but was unable to describe in terms of range of motion. The examiner found no ankylosis on the right knee. The examiner also found there was no subluxation, lateral instability, or recurrent effusion. Joint stability testing revealed no joint instability. The examiner noted that the Veteran did not have and never has had a meniscus condition. The Veteran was afforded a December 2019 VA examination during which the Veteran displayed 120 degrees flexion and 0 degrees extension of the right knee. Pain was noted during the examination, but it did not cause any functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions without any loss of range of motion. The examiner explained that the Veteran was not being examined immediately after repetitive use over time but that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner explained that the pain from repeated use over time would not limit the Veteran's range of motion of the right knee. The examiner explained that the Veteran was not being examined during a flare-up but that the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. The examiner explained that the pain from a flare-up would not limit the Veteran's range of motion of the right knee. The physician explained there was no ankylosis of the right knee. The Veteran was afforded a December 2020 VA examination during which the Veteran displayed 80 degrees flexion and 0 degrees extension of the right knee. The Veteran was able to perform three repetitions without any additional loss of range of motion. The conducting physician indicated that the Veteran was not being examined immediately after repetitive use over time and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The physician explained that pain from repeated use over time would limit the Veteran's flexion to 80 degrees. The conducting physician also indicated that the Veteran was not being examined during a flare-up and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. The physician explained that pain during a flare-up would limit the Veteran's flexion to 80 degrees. There was no ankylosis, recurrent subluxation, or lateral instability of the right knee. There was objective evidence of pain when the right knee was used in non-weight bearing. Passive range of motion of the right knee was the same active range of motion. There was no objective evidence of pain on passive range of motion testing. The Veteran was afforded a May 2021 VA examination during which he displayed 90 degrees flexion, 0 degrees extension. The Veteran also displayed 90 degrees flexion, 0 degrees extension upon active non-weight bearing, passive weight-bearing and passive non-weight bearing. The physician indicated that pain, weakness, and lack of endurance from repeated use over time and flare-ups would limit the Veteran's right knee flexion to 75 degrees, 0 degrees extension. The physician indicated there was no ankylosis, recurrent subluxation or persistent instability of the right knee. Analysis The Board acknowledges that the November 2008 examiner failed to address whether the examination was being conducted during a flare-up or after repetitive use over time. Additionally, the examiner did not provide specific values for weight-bearing or non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the Board cannot assign this opinion probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board elects to not remand this matter for a retrospective opinion because of the impracticality of obtaining such evidence as might be needed to retrospectively address the deficiencies of the various examinations; remanding these issues can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. The Board will not place the burden on the Veteran for the fact that the examiner did not obtain all the necessary information at the time of the examination. Rather, the Board will infer that any missing information from the November 2008 examination would support the next highest rating (20 percent). However, the Board also finds that a still higher (30 percent) disability rating is not warranted because there is no evidence that the Veteran's flexion of the right knee is limited to 15 degrees, that his extension of the right knee is limited to 20 degrees, that the Veteran has nonunion of the tibia and fibula requiring the use of a brace or that he has ankylosis of the right knee. Accordingly, from September 29, 2008, an increased initial 20 percent rating is granted for the Veteran's service-connected right knee disability. [CONTINUED ON NEXT PAGE] 2. From September 29, 2008 an initial increased rating of 20 percent (but not higher) is granted for service-connected right ankle disability. 3. From September 29, 2008 an initial increased rating of 20 percent (but not higher) is granted for service-connected left ankle disability. Legal Criteria Under the rating criteria in effect prior to February 7, 2021, DC 5271 provides that a 10 percent rating is warranted for a moderate ankle disability and a 20 percent rating for a marked ankle disability. The Board notes that prior to February 7, 2021, the terms "moderate" and "marked" were not defined. Therefore, the Board finds that a dictionary-based definition of these words is suitable as, in the absence of an express definition in a statute, words are presumptively intended to be given their ordinary meaning. See Terry v. Principi, 340 F.3d 1378, 1382 83 (Fed. Cir. 2003). Accordingly, "moderate" is defined as "limited in scope or effect: not violent, severe, or intense." See Merriam-Webster.com Dictionary, (February 19, 2021), https://www.merriam-webster.com/dictionary/moderate. "Marked" is defined as "having a distinctive or emphasized character." See Merriam-Webster.com Dictionary, (February 19, 2021), https://www.merriam-webster.com/dictionary/marked. Using the regulations prior to February 7, 2021, the question of whether a particular degree of disability is moderate or marked is ultimately a legal rather than a medical one and is to be based on the relevant medical and lay evidence. 38 C.F.R. § 3.100 (a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, the Department of Veterans Affairs (VA) "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present."). Under the updated regulations, DC 5271 defines moderate limitations of the ankle as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexions. Marked is defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. A moderate ankle disability warrants a 10 percent disability rating and marked ankle disability warrants a 20 percent disability rating. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Under both the current and prior regulations, the Board must evaluate all the evidence. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Factual Background During a November 2008 examination, the Veteran reported that he had been diagnosed with "sprains and fractures" in both of his ankles. He said that he experienced weakness, stiffness, swelling, and constant pain. He reported that he had pain while standing or walking for long periods. The right ankle range of motion for dorsiflexion was 20 degrees with pain at 0 degrees and 45 degrees with pain occurring at 0 degrees for plantar flexion. The left ankle range of motion for dorsiflexion was 20 degrees with pain at 0 degrees and 45 degrees with pain occurring at 0 degrees for plantar flexion. The examiner found that both ankles were limited by fatigue and incoordination after repetitive use. The examiner did not indicate whether the examination was taking place during a flare-up or after repetitive use over time. During a August 2016 examination the Veteran was diagnosed with right ankle strain. Range of motion testing at that time revealed normal dorsiflexion and plantarflexion. The examiner noted that the Veteran experienced pain during dorsiflexion range of motion exercises for the right ankle, but that the pain did not cause functional loss. Similarly, the examiner noted that the Veteran experienced pain during dorsiflexion and plantar flexion range of motion exercises for the left ankle, but that the pain did not cause functional loss. The examiner found no ankylosis or instability in either ankle but did note that the Veteran's ankles had "some swelling." The examiner indicated that the Veteran was not being examined immediately after repetitive use over time but that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner explained that pain and weakness from repetitive use over time would limit function of the Veteran's left and right ankles but was unable to describe in terms of range of motion. The examiner also indicated that the Veteran was not being examined during a flare-up but that the examination was medically consistent with the Veteran's statements describing flare-ups. The examiner explained that pain and weakness from flare-ups would limit function of the Veteran's left and right ankles but was unable to describe in terms of range of motion. During the March 2017 hearing, the Veteran testified that his left and right ankles were "similarly situated." He explained that he had taken pain medication for five years to help alleviate his ankle symptoms. The Veteran testified that his ankles sometimes lock, which caused difficulties walking. The Veteran and his wife demonstrated how he had difficulty walking in the morning and noted that he had fallen several times because of his ankle instability. During a November 2017 ankle examination, the Veteran was diagnosed with right ankle degenerative joint disease but was given no diagnosis for his left ankle. The examiner indicated that they had reviewed the claims file, including treatment records. The examiner noted the Veteran demonstrated right ankle pain in September 2016. The examiner noted that the Veteran did not report left ankle pain. The examiner found that they could not conduct range of motion testing for the right ankle because the Veteran' symptoms were "too painful." The examiner stated that there was pain both on movement and non-movement. The examiner found that there was evidence of pain on weight bearing motion and objective evidence of localized tenderness or pain on palpitation of the joint. The examiner found that the Veteran's pain significantly limited his functional ability. In December 2019, a VA examiner provided a retrospective opinion, explaining that there was significant functional loss due to pain mostly in the right ankle prior to the November 2017 VA examination. The examiner explained that the functional loss from pain in his ankles was affecting the Veteran's work as a mailman prior to November 2017. The Veteran was afforded a December 2019 VA examination during which right ankle range of motion for dorsiflexion was 20 degrees and 20 degrees for plantar flexion. The left ankle range of motion for dorsiflexion was 20 degrees and 45 degrees for plantar flexion. Pain was noted during the examination, but it did not result in functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion in either ankle. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time but that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner explained that pain and weakness from repetitive use over time would limit function of the Veteran's left and right ankles but was unable to describe in terms of range of motion. The examiner indicated that the Veteran did not report flare-ups of either ankle. In December 2020, a VA physician issued a retrospective opinion explaining that based on the evidence of record dated August 5, 2016, there was no decreased range of motion documented but pain and weakness was noted with flare-up. The physician explained that the Veteran's right ankle strain has progressed to decreased dorsiflexion motion of 5 degree with pain at 0 degrees and 10 degrees with pain occurring at 0 degrees for plantar flexion. The Veteran was afforded a December 2020 VA examination during which right ankle range of motion for dorsiflexion was 5 degrees and 10 degrees for plantar flexion. The left ankle range of motion for dorsiflexion was 10 degrees and 35 degrees for plantar flexion. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion in either ankle. The conducting physician indicated that the Veteran was not being examined immediately after repetitive use over time or during a flare-up and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare-up. The physician explained that pain from repeated use over time and/or during a flare-up would limit the Veteran's right ankle dorsiflexion to 5 degrees and 10 degrees for plantar flexion and 15 degrees dorsiflexion and 35 degrees for plantar flexion of his left ankle. In December 2020, the VA examiner provided an addendum opinion explaining that for the Veteran's left ankle, pain started at 10 degrees with dorsiflexion and 35 degrees with plantar flexion. The examiner also indicated that repetitive use and/or during a flare-up, the Veteran's dorsiflexion would be limited to 10 degrees and not 15 degrees as earlier indicated. During a May 2021 VA examination, range of motion for dorsiflexion was 10 degrees and 10 degrees for plantar flexion. The left ankle range of motion for dorsiflexion was 10 degrees and 35 degrees for plantar flexion. There was evidence of pain with weight-bearing, active and passive motion which cause functional loss such as difficulty with standing, running, walking up and down the steps. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion in either ankle. The conducting physician indicated that the Veteran was not being examined immediately after repetitive use over time or during a flare-up. The physician explained that pain and lack of endurance from repeated use over time and/or during a flare-up would limit the Veteran's right ankle dorsiflexion to 5 degrees and 5 degrees for plantar flexion and 15 degrees dorsiflexion and 30 degrees for plantar flexion of his left ankle. The physician indicated there was no ankylosis of either ankle. Analysis The Board acknowledges that the November 2008 examiner failed to address whether the examination was being conducted during a flare-up or after repetitive use over time. Additionally, the examiner did not provide specific values for weight-bearing or non-weight-bearing. See Correia supra; Sharp supra; DeLuca supra. Accordingly, the Board cannot assign this opinion probative value. See Reonal supra. The Board elects to not remand this matter for a retrospective opinion because of the impracticality of obtaining such evidence as might be needed to retrospectively address the deficiencies of the various examinations; remanding these issues can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. The Board will not place the burden on the Veteran for the fact that the examiner did not obtain all the necessary information at the time of the examination. Rather, the Board will infer that any missing information from the November 2008 examination would support the next highest rating (20 percent) for both the left and right ankles. The Board notes that this is the highest rating available under DC 5271. However, the Board also finds that no separate ratings are warranted under DC 5270 or 5272 because there is no evidence of ankylosis of either ankle. Additionally, there is no evidence of malunion of calcaneus or astragalus and the Veteran has never had an astragalectomy of either ankle. Accordingly, from September 29, 2008, an increased initial 20 percent rating is granted for the Veteran's service-connected right ankle and left ankle disabilities. 4. A TDIU rating due to service-connected disabilities prior to April 10, 2017 is denied. Legal Criteria It is the established policy of VA that all Veterans who are unable to obtain and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Veterans Court in found the phrase has two components: an economic one and a noneconomic one. Ray v. Wilkie, 31 Vet. App. 58 (2019). In assessing the Veteran's ability to obtain and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added.) Eligibility As of September 29, 2008, and prior to April 10, 2017, the Veteran was in receipt of a 70 percent rating for post-traumatic stress disorder and thus he meets the schedular criteria for TDIU eligibility for the stated period on appeal. 38 C.F.R. § 4.16(a). Factual Background The Veteran reported on his June 2017 application for a TDIU rating that he was employed as a mailman from August 2003 until April 10, 2017, making $3800 a month. The Veteran indicated that he earned $71,778 in the past 12 months. The Veteran testified at the Board hearing that he had to stop working for a postal service in the inner city and move to a postal service in a rural area due to his PTSD symptoms. A VA physician provided a December 2020 opinion during which they indicated that the Veteran did not report calling out from work or losing hours from work. The physician explained that the Veteran cannot perform tasks that warrant climbing, prolonged standing or sitting without difficulties because these activities would aggravate his current knee and ankle conditions and affect his ability to perform basic activities of daily living. During a May 2021 VA examination, the conducting physician explained that the Veteran reported that during his time as a mailman he missed a lot of work hours due to his disability. The Veteran reported being written up and threatened with termination. The Veteran explained that he was assigned a different task at work that would limit his hours of walking and standing due to his inability to maintain prolonged weight-bearing activities. The Veteran reported that when his ankle condition became more severe, he could hardly stand or walk for a couple of minutes before his pain increased. The physician explained that the Veteran went on full disability leave on April 1, 2017. Analysis The evidence of record shows that the Veteran maintained substantial gainful employment from August 2003 until April 2017. Although the Veteran missed some time from work due to his service-connected disabilities, he nevertheless managed to maintain substantial gainful employment during this time. [CONTINUED ON NEXT PAGE] Given the above, the Board finds the probative evidence of record shows that the Veteran was gainfully employed until April 10, 2017, while earning wages above the poverty threshold. The Board acknowledges that the Veteran experienced difficulties at work during this period but notes that these difficulties were compensated by the schedular disability ratings for the conditions that caused his difficulties at work. Ultimately, however, the Veteran managed to maintain substantial gainful employment until April 10, 2017 and, as such, a TDIU rating is not warranted prior to that date. The Board is grateful for the Veteran's honorable service. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.