Citation Nr: A21020084 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 211004-188453 DATE: December 16, 2021 ORDER Restoration of a 10 percent rating for service-connected instability of the left knee is granted. Restoration of a separate 10 percent rating for leg length discrepancy status post fracture of left lower leg is granted. A rating in excess of 10 percent for service-connected left knee osteoarthritis is denied. A rating in excess of 10 percent for service-connected instability of the left knee is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The December 2020 rating decision that reduced the rating for the Veteran's service-connected instability of the left knee from 10 percent to noncompensable effective December 4, 2020 failed to adhere to the procedural requirements for rating reductions. 2. The December 2020 rating decision that discontinued a separate rating for the Veteran's service-connected leg length discrepancy status post fracture of left lower leg effective December 4, 2020 failed to adhere to the procedural requirements for rating reductions. 3. The preponderance of the evidence shows that the flexion of the left knee was not limited to 30 degrees or less with consideration of reduced function on repetitive motion or during flare-ups at any time during the appeal period; or, extension limited to 10 degrees or more even with consideration of reduced function on repetitive motion or during flare-ups. 4. The Veteran's left knee instability symptoms have not more nearly approximated moderate or severe lateral instability or subluxation. 5. The Veteran's service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The reduction of the rating for service-connected instability of the left knee from 10 percent to noncompensable effective December 4, 2020 was improper; the reduction is void ab initio. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105. 2. The discontinuation of the separate rating for service-connected leg length discrepancy status post fracture of left lower leg effective December 4, 2020 was improper; the discontinuation is void ab initio. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105. 3. The criteria for a rating in excess of 10 percent for service-connected left knee osteoarthritis, on the basis of painful limited motion, have not all been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5055, 5010, 5256-63. 4. The criteria for a rating in excess of 10 percent for left knee instability have not all been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5055, 5010, 5256-63. 5. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from September 1964 to September 1966. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, reduced the rating for instability of the left knee from 10 percent to noncompensable effective December 4, 2020; discontinued the separate 10 percent rating for leg length discrepancy status post fracture of left lower leg; denied entitlement to a TDIU; and denied a rating in excess of 10 percent for left knee osteoarthritis. The Veteran's VA Form 10182, Decision Review Request: Board Appeal was received in October 2021. The Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In August 2020, the Veteran reported that his left knee disability impacted his ability to work and thus a claim for a TDIU has been raised as part of the Veteran's claim for an increased rating for his service-connected left knee disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Propriety of reduction of service-connected instability of the left knee from 10 percent to noncompensable. 2. Propriety of the discontinuation of the assignment of a separate 10 percent rating for leg length discrepancy status post fracture of left lower leg. By a December 2020 rating decision, the AOJ discontinued the assignment of a separate 10 percent rating for leg length discrepancy and reduced the 10 percent rating for the Veteran's service-connected instability of the left knee to a noncompensable rating following review of the findings of a December 2020 VA examiner. However, the proper procedures for implementing the rating reduction of the instability of the left knee and discontinuation of the separate rating for leg length discrepancy were not followed. See 38 C.F.R. § 3.105. In that regard, when a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the AOJ must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105. The Veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will occur, and the award will be reduced or discontinued effective from the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e), (i). When VA fails to adhere to the regulations governing ratings, the reduction is generally void ab initio. See, e.g., Greyzck v. West, 12 Vet. App. 288 (1999); Brown v. Brown, 5 Vet. App. 413 (1993); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Here, the December 2020 rating decision implemented the reduction and discontinuation, and review of the code sheet associated with that rating decision reflects the Veteran's combined disability rating was reduced from 70 percent to 60 percent effective from December 4, 2020. There was no period where either the reduction or discontinuation were proposed. The Veteran was not sent a letter prior to December 2020 informing him of all material facts and reasons why his ratings were being reduced and discontinued, and the AOJ did not inform him that he had 60 days to present additional evidence. Based on the AOJ's failure to adhere to the procedural requirements for a rating reduction/discontinuation, the Board finds that the reduction of the rating for instability of the left knee from 10 percent to noncompensable effective December 4, 2020 and the discontinuation of the separate 10 percent rating for leg length discrepancy status post fracture of left lower leg were not proper, and the decisions are void ab initio. Increased Disability Ratings The Veteran asserts that he warrants higher ratings for his respective knee disabilities during the time frames under consideration. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating 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). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate 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. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38C.F.R. §4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202, 206-8 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Disabilities of the knee and leg are generally rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. When considering disability of the musculoskeletal system, arthritis is considered. An evaluation of traumatic arthritis, Diagnostic Code 5010, is rated under the criteria for Diagnostic Code 5003, which in turn evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a. Painful motion of a joint not otherwise compensable is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. The rating criteria pertaining to Diagnostic Code 5010 was revised effective February 7, 2021. Posttraumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under an affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Prior to February 7, 2021, under Diagnostic Code 5257 for recurrent subluxation or lateral instability, a 10 percent rating was warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating was warranted for evidence showing that the recurrent subluxation or lateral instability can be characterized as moderate; and a 30 percent rating was warranted for recurrent subluxation or lateral instability which can be characterized as severe. The rating criteria pertaining to Diagnostic Code 5257 were revised effective February 7, 2021. A 10 percent rating is assigned 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; and 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 Diagnostic Code 5260 for limitation of flexion, a noncompensable rating is assigned for flexion limited to 60 degrees; a 10 percent rating is assigned for flexion limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees; and a 30 percent rating is assigned for flexion is limited to 15 degrees. Under Diagnostic Code 5261 for limitation of extension, a noncompensable rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 20 degrees; a 30 percent rating is assigned for extension is limited to 20 degrees; a 40 percent rating is assigned for extension is limited to 30 degrees; and a 50 percent rating is assigned for extension is limited to 15 degrees. Separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5256 pertains to ratings for ankylosis of a knee. The Court has scrutinized the "meaning" of ankylosis. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); Chavis v. McDonough, No. 18-2928 (April 16, 2021) ("flare-ups resulting in symptoms more nearly approximating ankylosis can warrant a higher rating under the general rating formula"). Diagnostic Code 5262 applies to ratings for impairment of the tibia and fibula. Diagnostic Code 5263 applies to rating genu recurvatum. The rating criteria pertaining to Diagnostic Code 5262 were revised effective February 7, 2021. However, as those Codes are not applicable in this matter, and the February 7, 2021 effective revision does not require further discussion. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that under 38 C.F.R. § 4.71, a separate evaluation may be assigned for meniscal problems under Diagnostic Codes 5258 or 5259, even when ratings are in effect under Diagnostic Codes 5257 and 5261. The Board must also consider functional impairment with respect to the baseline range of motion (ROM) noted during clinical evaluation. English v. Wilkie, 30 Vet. App. 347 (2018). Diagnostic Code 5055 pertains to prosthetic replacement of a knee joint. Upon such, 100 percent rating is in effect 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. The rating criteria pertaining to Diagnostic Code 5055 was revised effective February 7, 2021. A 100 percent rating is in effect for 4 months following implantation of prosthesis or resurfacing. Then, 60 percent rating is for application when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, rating is by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum evaluation for residuals of a total replacement is 30 percent. Diagnostic Code 5258 provides a maximum 20 percent rating when there is dislocated semilunar cartilage with frequent periods of "locking," pain and effusion into the joint. Diagnostic Code 5259 provides a maximum 10 percent rating for removal of symptomatic semilunar cartilage. As the effective date of the afore-noted Diagnostic Codes was effective from February 7, 2021, they are not for application in this AMA Direct Review case, as the period of appeal (and applicable evidence window) predate implementation Consequently, the Veteran's AMA knee claims must be assessed under the pre-February 7, 2021 revisions. 3. A rating in excess of 10 percent for service-connected left knee osteoarthritis. 4. A rating in excess of 10 percent for service-connected instability of the left knee. The Veteran contends that the symptoms of his left knee disability warrant an increased disability rating. The RO has rated the Veteran's left knee instability at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and his left knee osteoarthritis is as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5260, limitation of flexion. Notably, the Veteran is also in receipt of a separate 10 percent rating for leg length discrepancy under 38 C.F.R. § 4.71a, Diagnostic Code 5275, shortening of bones of the lower extremity. However, the AOJ did not address this issue in the December 2020 rating decision on appeal (nor in any other rating decision within one year prior of receipt of the Veteran's VA Form 10182). Hence, this issue is not currently before the Board. Under 38 C.F.R. § 4.71a, 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 a disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). The Diagnostic Codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, (limitation of flexion), a 10 percent disability rating is warranted for flexion limited to 45 degrees. Limitation of flexion to 30 degrees warrants a 20 percent disability rating. A 30 percent disability rating is assigned for flexion limited to 15 degrees or less. In order for the Veteran to receive a 10 percent rating under Diagnostic Code 5261 (limitation of leg extension), the evidence must show that his knee disability is manifested by leg extension limited to 10 degrees. A 20 percent rating under Diagnostic Code 5261 is warranted if the evidence shows leg extension limited to 15 degrees. The Veteran is entitled to a 30 percent disability rating for leg extension limited to 20 degrees. A veteran who has both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. See VAOPGCPREC 9-04 (September 17, 2004). Under Diagnostic Code 5257, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "moderate" and "marked" are not defined in the rating schedule but rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Terminology such as "slight" and "moderate" (when used by VA examiners and/or other physicians), 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. The Veteran underwent a VA examination in December 2020. The Veteran reported knee pain of 4/10 at best and 8/10 at worst and described the pain as minor throbbing in the joints. He reported flare-ups of his knees where his knees become so stiff that he cannot do anything but sit down or lay down until his medication takes some of the pain away. The Veteran endorsed functional loss or functional impairment in that he has lost the ability to do any bending, crawling or climbing and he conveyed that he moves a lot slower because of the pain. Upon physical examination, left knee flexion was to 90 degrees of flexion and extension was to zero degrees. The examining clinician indicated that range of motion itself did not contribute to functional loss. There was pain on upon flexion and extension, objective evidence of pain with weight-bearing, and objective evidence of crepitus. There was no objective evidence of localized tenderness or pain on palpation. There was no additional functional limitation following repetitive use. The examining clinician reported that the Veteran was not examined immediately after repeated use over time. However, he stated that pain and weakness significantly limit functional ability with repeated use over a period of time. The examining clinician estimated that range of motion would be to 95 degrees of flexion and extension to zero degrees after repeated use over time. Similarly, the examiner noted that the Veteran was not examined during a flare-up. However, the examining clinician opined that pain, fatigue, weakness and lack of endurance significantly limits functional ability during flare-ups. The examiner estimated that range of motion would be to 80 degrees of flexion and extension to zero degrees during flare-ups. The examining clinician indicated that the additional factors that contributed to the Veteran's left knee disability included swelling, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing was rated as 4/5 during both flexion and extension of the left knee. The examining clinician reported that the Veteran suffered a fracture of the left fibula in 1966 which likely contributes to the weakness of his left knee. There was no objective evidence of either muscle atrophy or ankylosis. Joint stability testing was normal and there was no history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. There was no evidence or history of a meniscal condition or surgical procedures for a meniscal condition. The examining clinician reported that the Veteran endorsed that he constantly used a cane for his knee osteoarthritis. Diagnostic imaging revealed degenerative arthritis in the left knee but no acute fracture or dislocation. There was objective evidence of pain on passive range of motion testing and on non-weightbearing testing of the left knee. Passive range of motion was the same as active range of motion, including consideration of pain. Regarding functional impact, the examining clinician stated that labor intensive job duties requiring lifting, bending, crawling, kneeling, or prolonged standing and walking greater than 30-minutes-to-one-hour at a time would intensify bilateral knee pain. As such, the Veteran would have to be able to maintain effective pain relief to perform these duties efficiently and that exacerbation of pain during this type of work would likely result in missed work time. In all, sedentary work would be more sustainable. The 10 percent disability rating for the Veteran's left knee osteoarthritis with a leg length discrepancy is based upon painful but noncompensable limitation of motion. As noted above, 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 under Diagnostic Code 5003. In order to meet the criteria for the next higher (20 percent) disability rating under Diagnostic Code 5260, there would have to at least be an indication of flexion limited to 30 degrees. This is clearly not the case as flexion in the Veteran's left knee has been 80 degrees or more throughout the appeal period even when considering functional loss due to flare-ups and repeated use over time. Given the range of motion findings and the lack of significant functional loss, frequency, and severity with flare-ups, or other motion including repetitive motion, the competent evidence of record fails to suggest that range of motion would more nearly approximate flexion limited to 30 degrees. In this regard, while the Veteran has painful motion on extension of the left knee, this extension has been documented as normal (zero degrees) throughout the appellate period. Thus, a separate initial compensable disability rating based on Diagnostic Code 5261 is not warranted as the Veteran does not meet the criteria for even a noncompensable rating. VAOPGCPREC 9-2004 (2004) (separate ratings may be assigned under Diagnostic Codes 5260 and 5261, where there is compensable limitation of flexion and extension). The December 2020 VA examination report, the only VA examination during the appellate period, reflects that joint stability testing was normal for the left knee. As such Diagnostic Code 5257 is not for application. The Board recognizes that the Veteran has conveyed that he requires a cane constantly; however, scrutiny of the record fails to show that the Veteran advanced that he needs this can because of instability. Even though the Court has held that nothing in Diagnostic Code 5257 provides that objective medical evidence is required or is to be favored over lay evidence in determining whether to assign a rating for lateral instability of the knee (see English v. Wilkie, 30 Vet. App. 347, 349 (2018)), neither the medical nor the lay evidence of record discloses moderate or severe lateral instability of the left knee. The weight of the evidence is against rating in excess of 10 percent for left knee instability. The medical evidence reflects slight instability of the left knee and the Board finds there is no evidence, to include the Veteran's statements, that reflects disability more nearly approximating moderate or severe recurrent instability. Notably, joint stability testing was normal throughout the appeal period. A June 2020 VA treatment note shows that the Veteran denied falling in the last 12 months and was not worried that he might fall. Observation of the Veteran's walk/mobility revealed "essentially normal" ambulation. Disabilities of the knee and leg may also be evaluated under Diagnostic Codes 5256, 5258, 5259, 5262 or 5263. The medical and lay evidence does not show that the Veteran's left knee disability was manifested by ankylosis, any impairment of the tibia and fibula, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, or genu recurvatum at any time during the appeal period. Thus, Diagnostic Codes 5256, 5258, 5259, 5262 and 5263 are not applicable in this case. In conclusion, the preponderance of the evidence is against the Veteran's claims for a rating in excess of 10 percent for the service-connected left knee osteoarthritis with a leg length discrepancy and for a rating in excess of 10 percent for the service-connected instability of the left knee the entire appeal period. In denying such ratings, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a TDIU. The Veteran asserts that his service-connected bilateral knee disabilities and service-connected depression prevent him from securing or following any substantial gainful employment. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. 524; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. §§ 4.16(a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Disabilities which are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. The Veteran is currently in receipt of a 50 percent rating for depressive disorder, effective August 7, 2020; a 10 percent rating for left knee osteoarthritis, effective September 15, 2016; a 10 percent rating for right knee osteoarthritis, effective September 15, 2016; a 10 percent rating for leg length discrepancy status post fracture of left lower leg, effective September 15, 2016; a 10 percent rating for left knee instability, effective September 15, 2016; and noncompensable rating for bilateral hearing loss and scar status post tibia fracture, both effective August 7, 2020. Accordingly, the Veteran meets the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) throughout the period on appeal. For the reasons set forth below, the Board finds that the evidence of record does not substantiate that the Veteran was unemployable by reason of his service-connected disabilities alone. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities). While the Veteran submitted a VA Form 21-8940 Application for Increased Compensation Based on Unemployability in August 2020, it was not substantially completed and lacked details regarding employment and educational history. When this information has not been submitted, the issue of TDIU, whether expressly or reasonably raised, cannot be properly adjudicated because of a lack of probative information and thus may be denied. In his VA Form 21-8940, the Veteran stated that his knees, depression, insomnia, and lumbar spine prevent him from securing or following any substantially gainful occupation. Notably, his lumbar spine disability is not even service connected. The Veteran reported retiring when he was 62 years old from a "job working with horses." Several VA examiners provided opinions as to the Veteran's service-connected disabilities' functional impact on his ability to work. Upon a June 2019 VA mental health examination, a psychologist indicated that the Veteran "had no problems in high school." Even though the Veteran did not indicate his specific educational level, the Board must assume that he completed his high school education and more, as he also reported he was an electrician (a field which requires technical prowess and a specialized skill set). Professionally, the Veteran also reported that he worked in equine management or possibly equestrian education. Indeed, with a high school education, specialized training as an electrician, and professional experiences as diverse as electrical work and work in horsemanship, the Board finds that this collective combination of education and work experiences highlight the Veteran's ability to obtain and maintain substantial employment considering his specific education and specific work experiences such as training new electricians remotely or advising professionals in horsemanship through virtual means. See Withers v. Wilkie, 30 Vet. App. 139 (2018). A December 2020 knee and lower leg conditions DBQ reveals that the Veteran reported knee pain of 4/10 at best and 8/10 at worst and described the pain as minor throbbing in the joints. He reported flare-ups of his knees where his knees become so stiff that he cannot do anything but sit down or lay down until the medicine takes some of the pain away. He reported functional loss or functional impairment in that he does not do any bending, crawling or climbing and moves a lot slower because of the pain. Regarding functional impact due to bilateral knee disabilities and leg length discrepancy, the VA examiner stated that labor intense job duties requiring lifting, bending, crawling, kneeling, or prolonged standing and walking greater than 30 minutes to one hour at a time would intensify bilateral knee pain. The examiner stated that the Veteran would have to be able to maintain effective pain relief to perform these duties efficiently and that exacerbation of pain during this type of work would likely result in missed work time. The examiner stated that sedentary work would be more sustainable. A December 2020 mental disorders DBQ reveals that the Veteran's service-connected depression manifests in depressed mood, chronic sleep impairment, flattened affect, disturbances of motivation and mood and difficulty in adapting to stressful circumstances, including work or a worklike setting. The VA psychologist found that these symptoms result in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he is divorced but has a good relationship with his children. He reported having several close friends and maintaining relationships with his siblings. He stated that he is unable to engage in recreational activities he enjoys due to his physical limitations. He reported attended church frequently. The Veteran denied receiving any current mental health treatment and reported difficulty remaining asleep due to pain from his physical disabilities. He stated that he is not easily annoyed and has good appetite. He stated that he prefers to remain isolated at home and denied suicidal ideation. Regarding functional impairment, the VA psychologist stated that the Veteran's depression coupled with other medical diagnoses has had a significant impact on his work performance and has contributed to his lack of presenteeism and absenteeism when he was in his last occupational setting. The VA psychologist added that it has adversely impacted multiple areas of the Veteran's performance, including focus and decision making, time management, completing physical tasks, social interactions, and communication and stated that the aforementioned factors hinder job success in all working settings including sedentary work environments. The VA psychologist noted that these difficulties can present unsafe situations and/or an unproductive worker. While the opinion provided by the VA psychologist suggests that the Veteran would have significant difficulty with even sedentary employment, it is unclear whether the psychologist considered only service-connected disabilities as the opinion vaguely references "other medical diagnoses." Additionally, the opinion appears to contradict the Veteran's statements regarding communication and social interaction as the Veteran reported good relationships with his children and siblings and good relationships with several close friends. Notably, neither VA examiner determined that the Veteran's service-connected disabilities would preclude all forms of gainful employment. Accordingly, the Board finds that the preponderance of evidence is against a finding that the Veteran is unemployable due to his service-connected disabilities. The Board reiterates that the sole fact that the Veteran was unemployed or had difficulty obtaining or following employment is not enough to warrant entitlement to a TDIU. The examiners' descriptions of the impairment caused by the Veteran's service-connected disabilities are consistent with the current ratings assigned for those disabilities, and even when all of the symptoms are considered together, the overall disability picture does not suggest that the Veteran is altogether incapable of working. In accordance with the Court's holding in Ray, the Board has considered the economic and noneconomic components of the Veteran's TDIU claim. Ray, 31 Vet. App. 58. The Board recognizes that the Veteran's service-connected disabilities present challenges. However, they do not preclude occupations performed in an office setting where there is an opportunity for breaks to gain composure and limitations on physical activities. His physical limitations do not rise to the level of rendering the Veteran totally impaired occupationally. Many employers offer reasonable accommodations pursuant to the Americans with Disabilities Act as amended (ADAAA), to allow for downtime due to disabilities. In the Veteran's case, it would be quite feasible for an employer to provide breaks in quiet settings where the Veteran could rest during periods/bouts of symptoms associated with his service-connected disabilities. The evidence of record fails to reveal that exceptional circumstances exist which warrant consideration under 38 C.F.R. § 4.16(b). The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, entitlement to a grant of TDIU is denied. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victor Modesto 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.