Citation Nr: 21005950 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 06-02 460 DATE: February 3, 2021 ORDER An initial rating higher than 10 percent prior to June 27, 2011 for right knee traumatic arthritis and consequent limitation of motion is denied. However, for this initial period prior to June 27, 2011, a separate 20 percent rating also is granted for impairment of semilunar cartilage of this knee. [Note: from June 27, 2011 to September 1, 2012, the Veteran had a temporary 100 percent rating for his right knee disability because of total knee replacement.] Entitlement to a rating higher than 30 percent as of September 1, 2012 for this right knee disability, status-post arthoplasty (total knee replacement), and higher than 60 percent since May 20, 2019 is denied. But a total disability rating based on individual unemployability (TDIU) is granted since December 27, 2006. REMANDED Entitlement to a TDIU prior to December 27, 2006, on an extra-schedular basis, is remanded. FINDINGS OF FACT 1. Prior to June 27, 2011, the Veteran’s right knee traumatic arthritis manifested in noncompensable limitation of motion on both flexion and extension, albeit with pain on motion. 2. But also prior to June 27, 2011, he had other residuals of his right knee injury (post meniscus repair and arthroscopy) – including frequent episodes of “locking” of this knee and joint effusion, so aside from the arthritic pain. 3. From September 1, 2012 to May 20, 2019, the evidence shows his right knee post-operative residuals were normal flexion, normal extension and no objective evidence of ankylosis or chronic residuals consisting of severe painful motion or weakness. From May 20, 2019, onwards, he has had postoperative residuals that have included severe painful motion and severe weakness. 4. At least since December 27, 2006, his service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to June 27, 2011, the criteria are not met for entitlement to a rating in excess of 10 percent for the right knee traumatic arthritis and any associated limitation of motion on either flexion or extension. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs/Codes) 5003, 5010, 5260, and 5261. 2. But also prior to June 27, 2011, the criteria conversely are met for entitlement to a separate 20 percent rating, though no greater, for impairment of the semilunar cartilage of the right knee. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5258.   3. The criteria are not for entitlement to a rating higher than 30 percent for the right knee disability (post total right knee replacement) as of September 1, 2012 or for a rating higher than 60 percent since May 20, 2019. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5055. 4. The criteria are met for a TDIU since December 27, 2006. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U. S. Air Force from December 1975 to June 1992. This appeal to the Board originates from a February 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) and has been remanded back to the RO multiple times – most recently in May 2019. In the interim, the Veteran testified at a hearing in August 2007 before a Veterans Law Judge of the Board. A transcript is of the hearing is of record. In April 2011, the Board sent the Veteran notice indicating the Judge who had presided over that hearing was no longer employed at the Board. Thus, in accordance with 38 C.F.R. § 19.3(b), the Veteran was given opportunity to have another hearing before a different Veterans Law Judge who would ultimately decide this appeal. The Veteran did not respond to that notice, however, including to indicate he wanted another hearing, so this appeal has been assigned to the signatory judge for resolution.   Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the evidence contains factual findings that demonstrate distinct time periods during which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of “staged” ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For a musculoskeletal disability, such as the right knee disability at issue that is evaluated partly based on the extent it causes limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 pertaining to functional impairment – including owing to pain or painful motion, premature or excess fatigability, weakness and incoordination. See also DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). 1. A rating higher than 10 percent prior to June 27, 2011 for the right knee traumatic arthritis and consequent limitation of motion is denied. 2. However, for this same period prior to June 27, 2011, a separate 20 percent rating is granted for impairment of the right knee semilunar cartilage. The Veteran has undergone several right knee surgeries – initially in 1977 but also in 1985 and 1986 for meniscus, ligament, and cartilage repair. He even more recently underwent still additional surgery in June 2011 for total knee replacement. Because of that most recent surgery for the right total knee replacement, his right knee disability is now rated under Diagnostic Code 5055.   Prior to June 2011, therefore prior to his total knee replacement surgery, however, the Veteran’s right knee disability was rated, instead, under DC 5010 (for arthritis due to trauma, i.e., post-traumatic arthritis). According to DC 5010, the disability is to be rated as degenerative arthritis under DC 5003 – which, in turn, specifies to rate the disability based on the extent it causes limited motion of the affected joint, so, here, since the right knee, invoking consideration of DC 5260 (for limitation of knee/leg flexion) and DC 5261 (for limitation of knee/leg extension). Also, however, according to DC 5003, when the limitation of motion of the specific joint or joints involved is noncompensable (meaning 0-percent disabling) under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, but not to be combined. So, if a Veteran has arthritis in his knee, but it does not cause a compensable level of limitation of motion – on either flexion or extension according to DCs 5260 and 5261, respectively, then he still is entitled to a 10 percent rating under DC 5003. However, no greater rating is warranted in this circumstance. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) explained that § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Moreover, in Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011), the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (again, meaning 0-percent disabling) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. For rating purposes, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II.   Limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30-percent disabling. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5261. Throughout the claim period prior to June 2011, meaning since January 2005, the Veteran's right knee has had noncompensable limitation of motion since his extension was limited to between -4 and -5 degrees or better and his flexion to 90 degrees or better. His right knee range of motion was most restricted during an August 2005 Social Security Administration (SSA) evaluation when his flexion was measured to 90 degrees and during physical therapy evaluations in 2005 when his extension was limited to between -4 and -5 degrees. A February 2005 VA examination noted 135 degrees of flexion with pain at maximum flexion and no additional limitation owing to pain on motion. These findings are consistent with noncompensable evaluations under DCs 5260 and 5261, even when considering the effect of his pain on his range of motion. With consideration of functional factors, it is clear the Veteran's knee has manifested flexion that is limited, at most, to 90 and 95 degrees with extension limited, at most, between -4 and -5 degrees. The February 2005 VA examiner also found that the Veteran experienced pain and swelling 3-4 times a week and that he had trouble with weight bearing. The examiners all reported the point at which pain began during the range-of-motion testing, and that there was no additional loss of motion following repetitive-use testing during the February 2005 examination.   A December 2006 examiner additionally reported the Veteran experienced daily sharp pain related to his right knee disability, and treatment records also from December 2006 indicate he was experiencing swelling in this knee. In July 2010, the Veteran reported chronic sharp pain in his right knee with daily swelling, weakness and a “popping” sound. No instability was noted. The Veteran also reported experiencing limitations to physical activity such as standing, walking, stooping, pushing, and bending, so his right knee disability therefore clearly has resulted in functional impairment, but the objective medical evidence establishes that this impairment, prior to June 2011, did not result in limitation of motion greater than 95/90 degrees of flexion or -4/-5 degrees of extension. The Board, therefore, finds that this limitation of motion is noncompensable according to DCs 5260 and 5261. Thus, as explained, in this circumstance at most a 10 percent rating is warranted under DC 5003 (on referral from DC 5010). Moreover, because, prior to June 2011, the Veteran had a noncompensable level of restricted motion on extension and flexion, he cannot receive separate ratings for limitation of extension and flexion. VAOPGCPREC 9-2004 (September 17, 2004). That said, even prior to his June 2011 total knee replacement surgery, the Veteran has reported experiencing recurring swelling (effusion) and his knee “giving way” approximately once a week – albeit without causing him to fall, even aside from his chronic pain. For example, he reported this during a July 2010 VA examination and again during a January 2016 VA examination. During the January 2016 evaluation, he specifically indicated, consistent with his earlier 2010 reports, that he experienced symptoms of his knee “locking up” and “giving way” prior to his surgery in 2011. As a result, the Board finds a separate assignment of a 20 percent rating warranted under DC 5258 to account for his additional symptoms of swelling (effusion) and “locking” prior to his knee surgery in June 2011.   According to DC 5258, a maximum 20 percent evaluation is possible for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The lay and medical evidence establishes impairment of the Veteran’s meniscus and cartilage during the initial claims period, to include joint effusion and locking. As the evidence establishes semilunar cartilage dysfunction – namely, through his well-documented prior meniscus repair surgery, and frequent episodes of pain and effusion into the right knee joint, a 20 percent rating is warranted under DC 5258 prior to June 2011. The Board has considered whether the assignment of this separate 20 percent rating under DC 5258, meaning apart from the existing 10 percent ratings under DC 5010 (with referral to DC 5003 and 5260 and 5261) violates the rule against pyramiding of disabilities, meaning compensating the Veteran twice or more for the same symptoms and impairment. See 38 C.F.R. § 4.14. However, in Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that separate ratings are not precluded for limitation of motion (DCs 5003, 5260 and 5261), meniscal disability (DCs 5258 and 5259) and instability (DC 5257). Consequently, entitlement to an increased rating for right knee traumatic arthritis and limitation of motion in excess of 10 percent is denied prior to June 2011; however, entitlement to a separate 20 percent rating for impairment of the right knee semilunar cartilage prior to June 2011 is granted. Although, as discussed, the Veteran complained of his right knee “giving way” or “going out” and consequently having to wear a knee brace, so aside from the arthritic pain contemplated by DC 5003 and the locking, etc., contemplated by the meniscal injury considered in DC 5258, testing during his VA examinations repeatedly was unremarkable for objective confirmation of instability of his right knee. And, while it is true the Court has explained that medical evidence is not categorically required to establish knee instability, and that it is impermissible to necessarily favor medical evidence over lay evidence concerning this, the “giving way” he complained about apparently was due to the meniscal injury that he is being separately compensated for in this decision under DC 5258. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Thus, he is not entitled to a still additional separate rating for instability. VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). 3. Entitlement to a rating higher than 30 percent for the right knee disability (status-post arthoplasty, i.e., total knee replacement) as of September 1, 2012 and a rating higher than 60 percent since May 20, 2019 As already alluded to, the Veteran underwent total right knee replacement surgery (arthoplasty) in June 2011 and consequently was awarded a temporary 100 percent rating from June 27, 2011 to August 30, 2012, but has had a 30 percent rating since September 1, 2012 and a 60 percent rating since May 20, 2019. Pursuant to DC 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 DCs 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, DC 5055. According to DC 5256, a 40 percent rating is available for ankylosis of the knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for ankylosis of the knee in flexion between 20 degrees and 45 degrees. A 60 percent rating is assigned for extremely unfavorable ankylosis of the knee in flexion at an angle of 45 degrees or more.   Higher than 30 percent from September 2012 to May 2019 VA treatment records, VA examination reports dated in January 2016 and April 2017, as well as private treatment records described the Veteran as having regular use of a knee brace for support (not malunion or nonunion), regular use of a cane and scooter for walking, and reduced range of motion but no evidence of pain with weight bearing and no additional loss after repetitions. Flare-ups were not reported until his 2019 VA examination. He did not report instability and no gait or functional impairment was noted prior to May 2019. Consequently, evidence of record during this intervening period shows that he suffered from no more than intermediate degrees of residual weakness, pain or limitation of motion in his right knee that does not warrant the assignment of a rating exceeding 30 percent under DCs 5055, 5256, 5261, or 5262. Higher than 60 percent since May 2019 With regards to a rating greater than 60 percent after May 2019, the Board further finds that the assignment of any higher rating is not warranted under the applicable rating criteria, as the Veteran has not had any portion of his right lower extremity amputated and a 100 percent rating is only warranted for the one year period following implantation of the knee prosthesis under DC 5055. Generally, evaluating a disability using either the corresponding or analogous DCs contained in the Rating Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27. However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. Nonetheless, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned scheduler evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture in this case is not so unusual or exceptional in nature as to render the already assigned ratings inadequate. After June 2011, his service-connected right knee disability is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5055, the criteria of which are found by the Board to specifically contemplate the level of impairment caused by his right knee disability. Id. The ratings assigned are warranted for knee replacement (prosthesis), and increased ratings are available under the rating criteria if other manifestations of the right knee disability are shown once beyond the convalescence and one-year post-operative regulatory grace period. These diagnostic criteria fully and adequately describe the severity and symptomatology exhibited by the Veteran's right knee. When comparing his disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that his experiences are congruent with the disability picture represented by the disability ratings assigned. The criteria for 60 and 30 percent ratings, upon termination of the temporary 100 percent rating, reasonably describe his disability levels and symptomatology during the appropriate time periods discussed above. Consequently, the Board concludes that the assigned schedular evaluations are adequate and that referral of his right knee claim for extra-schedular consideration is not required. See 38 C.F.R. § 4.71a, DC 5055; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996).   Additional Considerations The Board further finds that there is no basis for the assignment of any higher rating based on consideration of functional loss of the right knee during these time periods. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); Deluca, 8 Vet. App. at 204-06; Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016). Even with the Veteran's assertions of pain, weakness, reduced range of motion, flare-ups, and functional limitation, he has not demonstrated limitation of extension or flexion to warrant the assignment of any higher evaluations. The evidence reflects that the currently assigned 60 percent and immediately preceding 30 percent ratings properly compensate him for the extent of functional loss resulting from painful motion, fatigue, weakness, stiffness, and tenderness of his right knee. The Board has considered the findings regarding less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, and deformity. Here, however, the available medical findings do not show that painful motion, limitation of motion on repetitive use or during flare-ups, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation during these succeeding periods. Consequently, no higher rating than 30 percent is warranted as of September 2012 and no higher rating than 60 percent since May 2019. For these reasons and bases, the Board finds that the preponderance of the evidence is against these claims, so the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Consequently, the appeal of these claims must be denied – except, as mentioned, for the assignment of the additional 20 percent rating under the meniscal code (DC 5258). Entitlement to a TDIU since December 27, 2006 In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part and parcel of an increased-rating claim when unemployability is expressly raised by the Veteran or reasonably raised by the record. Here, this derivative claim has been raised both by the record and specifically by the Veteran and, therefore, is part of this appeal. An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability or disabilities. For schedular consideration, a Veteran must meet one of the following conditions: 1) if he has just one service-connected disability, it must be rated at 60 percent or more, or 2) if he has more than one service-connected disability, at least one must be rated at 40 percent or more with additional service-connected disability sufficient to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, however, disabilities resulting from common etiology or single accident or affecting both upper extremities or both lower extremities or single bodily system will be considered as one, collective, disability. Id. During the applicable review period beginning in January 2005, the Veteran has had the following service-connected disabilities and corresponding ratings for them: Left Knee Replacement (100 percent from August 2015, 30 percent from October 2016, 60 percent from May 2019); Right Knee Replacement/Arthritis status post meniscus repair (0 percent from July 1992, 10 percent from June 2001, 30 percent from January 2005, 100 percent from June 2011, 30 percent from September 2012, and 60 percent from 2019); Degenerative Disc Disease of the Lumbosacral Spine (10 percent from July 1992, 40 percent from December 2006, 100 percent from March 2016, and 40 percent from June 2016), Left Sided Paralysis (20 percent from December 2006); Right Sided Paralysis (10 percent from December 2006, 20 percent from December 2016), Left Shoulder arthritis (10 percent from December 2006 to August 2015); Toe Fracture (10 percent from May 2019). Consequently, the ratings for the Veteran’s service-connected disabilities meet the criteria for schedular consideration of entitlement to a TDIU beginning December 27, 2006. Moreover, as will be discussed, the evidence indicates his service-connected disabilities, when also considering his level of education, training and prior work experience, have rendered him incapable of obtaining or maintaining substantially gainful employment. Thus, this claim must be granted. Substantially gainful employment is defined as work that is more than marginal, and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). In making this determination, consideration may be given to his level of education, special training, and previous work experience, but not to his age or to impairment owing to non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. On March 14, 2019, so during the pendency of this appeal. the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities Here, records show the Veteran worked for the U.S. Postal Service for over 10 years prior to his medical retirement due to his service-connected low back disability (Degenerative Disc Disease of his Lumbosacral Spine). The record also indicates that, as part of his job as mail carrier, he had to do a significant amount of physical activity – including, but not limited to, lifting heavy objects, bending, and pushing mail carts. Multiple evaluations indicate the difficulty he had in attempting to perform those required tasks, especially given the limitations caused by his service-connected low back and knee disabilities. The record also very specifically notes that he left that job because of his low back disability particularly.   It is worth repeating that, to receive a TDIU, the service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule 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. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment. Here, though, all things considered, the Board finds that the Veteran's service-connected disabilities – especially his low back disability but also when considering his others, too, have been sufficiently severe as to render him unable to secure or maintain any form of substantially gainful employment since December 27, 2006 (the date on which he is first eligible for a schedular TDIU). Accordingly, a TDIU is warranted as of that date, subject to the statutes and regulations governing the payment of retroactive compensation. REASONS FOR REMAND Entitlement to a TDIU on an extra-schedular basis prior to December 27, 2006 is remanded. The Veteran contends he is entitled to a TDIU even prior to December 27, 2006, and the record reflects he was medically retired from his job with the United States Postal Service the year prior – in January 2005, primarily as mentioned due to his service-connected low back disability (degenerative disc disease of the lumbosacral spine). The record also indicates he experienced difficulty performing his job due to his knee condition, as well, to include having to use his left foot (as opposed to his right foot) to operate the brake on his truck for work. The Board therefore finds sufficient lay and medical evidence at least suggesting the Veteran's service-connected disabilities, despite not meeting the threshold minimum rating requirements for schedular TDIU consideration prior to December 27, 2006, nevertheless may have prevented him from performing the mental and physical acts required of substantial gainful employment even prior to December 27, 2006. Thus, the Board must refer this matter to the Director of the Compensation Service for consideration of entitlement to this benefit on an extra-schedular basis under the special provisions of § 4.16(b). Accordingly, this remaining portion of this claim is REMANDED for the following action: Refer the Veteran's claim for a TDIU on an extra-schedular basis prior to December 27, 2011 to the Director of Compensation Service for consideration under § 4.16(b). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.