Citation Nr: 21006181 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-05 651A DATE: February 3, 2021 ORDER Entitlement to a rating higher than 10 percent for chondromalacia patella and patellar tendonitis of the right knee, to include a separate rating higher than 10 percent for instability, is denied. Entitlement to a rating higher than 10 percent of chondromalacia patella and patellar tendonitis of the left knee, with arthritic changes, to include a separate rating higher than 10 percent for instability, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted as of January 31, 2019, however, no earlier, subject to the statutes and regulations governing the payment of compensation. FINDINGS OF FACT 1. The Veteran’s right knee does not have extension limited to greater than 5 degrees or flexion limited to less than 60 degrees. 2. His left knee does not have extension limited to greater than 10 degrees or flexion limited to less than 60 degrees. 3. At most, he has “slight” instability of each knee. 4. Prior to January 31, 2019, his service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior training and work experience, but they have effectively since January 31, 2019. CONCLUSIONS OF LAW 1. The criteria are not met for a rating in excess of 10 percent for right knee chondromalacia patella and patellar tendonitis. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40. 4.45. 4.59, 4.71a, Diagnostic Codes (DCs) 5260, 5261. 2. The criteria are not met for a rating in excess of 10 percent for left knee chondromalacia patella and patellar tendonitis, with arthritic changes. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40. 4.45. 4.59, 4.71a, DCs 5003, 5010, 5260, 5261. 3. The criteria are not met for a rating in excess of 10 percent for right knee instability. 38 U.S.C. §§ 1155,5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, DC 5257. 4. The criteria are not met for a rating in excess of 10 percent for left knee instability. 38 U.S.C. §§ 1155,5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, DC 5257. 5. But the criteria are met for a TDIU since January 31, 2019, though no earlier. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These claims were previously before the Board in May 2015 when they were remanded for a Board hearing to be scheduled on the timeliness of the appeal, again in February 2017 when they were remanded for a Board hearing to be scheduled on the underlying merits of the claims, and in January 2018 when the claims were denied. The Veteran appealed the Board’s decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In a January 2019 Order, the Court vacated the Board’s January 2018 decision and remanded these claims back to the Board for action consistent with the terms of a Joint Motion for Partial Remand (JMPR). In January 2020, the Board, in turn, again remanded the claims back to the Agency of Original Jurisdiction – this time to review or consider certain pieces of evidence and again in April 2020 to provide the Veteran another examination reassessing the severity of his disabilities. In an August 2020 decision since issued, on remand, the Appeals Resource Center (ARC) granted service connection and separate 10 percent ratings for instability of the Veteran’s right and left knees retroactively effective from April 11, 2008. He since has continued to appeal, both for ratings higher than the 10 percent ratings he already had for his right and left knee disabilities and for ratings higher than 10 percent for this additional instability. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating [or, here, separate rating] does not abrogate a pending appeal – unless the highest possible rating is granted or the Veteran expressly indicates he is content with the new rating and it covers the entire rating period under review). In July 2017, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed at the Board. In December 2020 correspondence, the Board consequently notified the Veteran that he could have another hearing before a different Veterans Law Judge that would ultimately decide this appeal, and that if he did not respond to the letter within 30 days, the Board would assume that he did not want another hearing and would proceed accordingly to deciding his appeal. He has not requested another hearing; therefore, the Board will assume he does not want one and is going ahead and adjudicating his claims. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 For disabilities evaluated based on 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. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings.   1. Entitlement to an increased rating for right knee chondromalacia patella and patellar tendonitis AND 2. Entitlement to an increased rating for left knee chondromalacia patella and patellar tendonitis with arthritic changes This portion of the Veteran’s left knee disability is evaluated under hyphenated DC 5010-5261 as 10-percent disabling, and this portion of his right knee disability is evaluated under DC 5260 also as 10-percent disabling. According to DC 5010, arthritis due to trauma (i.e., post-traumatic arthritis), substantiated by X-ray, is rated as degenerative arthritis under DC 5003. According to DC 5003, the arthritis, in turn, is rated under the appropriate DC based on the extent it causes limitation of motion of the specific joint or joints involved – which, here, since affecting the knees, are DC 5260 (for limitation of knee/leg flexion) and DC 5261 (for limitation of knee/leg extension). DC 5003 also explains that, when there is noncompensable limitation of motion (meaning it would be rated as 0-percent disabling under the appropriate DCs), a rating of 10 percent nonetheless is for application for each major joint or group of minor joints affected by the limitation of motion. So, essentially, when there is arthritis, the Veteran is entitled to the minimum 10 percent rating even absent a level of limitation of motion that otherwise would support assignment of this minimum compensable rating. The Veteran would be entitled to a higher rating for his left knee under DC 5261 if he had extension limited to at least 15 degrees (which would warrant a 20 percent rating), limited to 20 degrees (30 percent), limited to 30 degrees (40 percent), or limited to 45 degrees (50 percent). He would be entitled to a higher rating for his right knee under DC 5260 if he had flexion limited to 30 degrees (20 percent) or 15 degrees (30 percent). To give this some context, consider that 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.   The Veteran’s disabilities are service-connected effective from January 1992. In a statement received by VA on April 11, 2008, he requested increased ratings for his knee disabilities, contending they had worsened. According to 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating can be up to one year prior to the date of receipt of the increased rating claim of the evidence reflects a worsening of the disability during that immediately preceding year such that a higher rating was warranted. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year “grace period” for filing a claim following an increase in severity of a service-connected disability). In other words, this increase in disability during that immediately preceding year must be factually ascertainable, else, the effective date can be no earlier than the date of receipt of the claim or date entitlement arose, if later. See Harper v. Brown, 10 Vet. App. 125 (1997). Thus, in deciding these claims, the Board has considered the evidence from one year prior to the date on which the Veteran filed his claims for higher ratings for these disabilities to determine whether the evidence reflects a worsening of them during that immediately preceding year, or since, such that higher ratings are warranted. A June 2007 VA treatment record for routine follow up evaluation notes the Veteran had chronic bilateral knee pain diagnosed as chondromalacia. The Veteran reported that he continued to have anterior knee pain symptoms, pain with stairs, pain with kneeling, and pain with squatting. He denied mechanical symptoms such as swelling, locking, and buckling of the knee. He was in no acute distress and ambulated well. His left knee was stable with positive patella grind test. The Veteran’s symptoms were noted to be a little out of proportion to his physical examination and radiographic findings. A May 2008 VA contract examination reflects that the Veteran reported pain, weakness, stiffness, and giving way, but not swelling heat, redness, lack of endurance, locking, fatigability, or dislocation. The Veteran reported that the pain could be elicited by physical activity and stress, and relieved by rest and on its own. Additionally, his left knee pain was relieved by medication. He did not experience any functional impairment from these conditions. Physical examination found his posture and gait to be within normal limits. Both knees were tender. Neither knee showed signs of edema, effusion, weakness, redness, heat, or guarding of movement. There was no subluxation. Both knees were noted to show traumatic genu recurvatum with weakness, insecurity on weight bearing, and crepitus. There was no locking pain. Range of motion for both knees was from zero to 100 degrees, with pain beginning at 100 degrees. Although the examiner stated that joint function in both knees was additionally limited by pain and fatigue with pain having the major functional impact, the examiner found that this additional limitation was 0 degrees. Medial and lateral meniscus testing in both knees was slightly abnormal. All other stability testing was normal. Right knee X-rays were within normal limits. Left knee x-rays showed arthritic changes. The Veteran was diagnosed with right knee chondromalacia of the patella and patellar tendonitis, genu recurvatum with slight instability of the right knee, and left knee chondromalacia of the patella and patellar tendonitis, degenerative joint disease, genu recurvatum with slight instability of the left knee. The Board notes, however, that the report also states that the left and right knees have no signs of weakness or guarding of movement. Genu recurvatum is a deformity in the knee joint so that the knee bends backwards; thus, it seems reasonable that if he had it, it would have been noted in subsequent examinations. However, as noted below, subsequent examinations are unremarkable for genu recurvatum with objective demonstration of weakness and insecurity in weight-bearing, and the Veteran has not alleged that he has genu recurvatum; thus, the evidence of record as a whole is against such a finding. A July 2015 VA treatment record notes the Veteran’s request for new knee braces, noting that the previous ones were wearing out. A January 2016 Disability Benefits Questionnaire (DBQ) describes the Veteran’s symptoms as bilateral knee pain every day, aggravated by activity, specifically at his kneecaps (patellae), inability to climb stairs even with a cane, and occasionally popping “like bubble wrap.” He denied any recent physical or occupational therapy for his knees. Pain was relieved with rest and pillows between his knees. He did not report flare-ups. Functionally, he reported that these disabilities prevented prolonged standing, waiting in line at stores, bending down, squats, climbing stairs, and mowing his grass even with a self-propelled lawnmower.   Range of motion testing found flexion limited to 130 degrees in the right knee and to 125 degrees in the left knee. Extension was normal in the right knee and limited to 10 degrees in the left knee. The limitation of motion, itself, did not contribute to a functional loss in either knee. Pain was noted on examination in flexion and extension of both knees but did not result in or cause functional loss. There was no evidence of pain with weight bearing on either knee. The Veteran was able to perform repetitive-use testing with at least three repetitions for both knees without additional loss of range of motion or functional loss. Both knees showed objective evidence of crepitus. The Veteran was not being examined immediately after repetitive use over time and the examiner found that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to say, without resorting to mere speculation, whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, noting there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Similarly, the Veteran was not being examined during a flare-up and the examiner found that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare-up. The examiner was unable to say, without resorting to mere speculation, whether pain, weakness, fatigability or incoordination significantly limit functional ability during a flare-up, noting there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. This is an adequate explanation, as the examiner had the Veteran’s symptoms before him and therefore considered the Veteran’s reported symptoms. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The 2016 DBQ also notes there were no other contributing factors of disability. There was no reduction of muscle strength, atrophy, history of recurrent subluxation, or history of recurrent effusion. On stability testing, no joint instability was found for either knee. The Veteran did not then currently or historically have recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. He did not then currently or historically have a meniscus condition. He had not undergone any knee surgery. He did not have any associated scars or other pertinent physical findings, complications, conditions, signs or symptoms related these disabilities. He required regular use of a brace and cane for normal locomotion. His bilateral knee disability did not result in functional impairment of an extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. Imaging studies showed arthritis in the left knee only. His knee disabilities prevented prolonged standing and walking. He was retired from the postal service and reported losing less than one week of time from work over the prior 12 months. There was no acquired or traumatic genu recurvatum with objectively demonstrated weakness and insecurity in weight-bearing in either knee. The Veteran testified during his July 2017 hearing that he had been using sleeve knee braces since 1995 and got hinged knee braces in 2015. He said that his knees buckle or give out, and that, although he used to get knee injections, they are no longer an option because of his liver (i.e., the injections might have adverse side effects on liver function). He said that he does not take pain medication but just lives with the pain or smokes marijuana. He had retired from working in 2013, in part, owing to his knee disabilities and disabilities affecting his feet, but also due to his non-service-connected shoulder disability, which he had torn three times. The Veteran underwent another examination in July 2020. The DBQ reflects that that he reported that, over the years, the pain has progressively gotten worse; he now has constant pain that is worse with weight bearing activities; the pain makes it difficult to stand or walk for long. He also reported that the pain makes it difficult getting from sitting to standing position; he uses a cane and braces daily for support and wraps mostly at night. He further reported that both knee swell with prolonged standing and walking, and that the pain makes it difficult to perform weight-bearing activities and sleeping at night. He stated “I have trouble walking any type of stairs. I don't even go to my sister's house; she got a big porch. I can't get in and out of tub. I have trouble standing and walking, kneeling. I can't squat, no way. I used to but not now.”   On objective physical examination in July 2020, regarding the right knee, the Veteran had range of motion from 0 to 100 degrees, with pain noted on examination during flexion, extension, and with weight-bearing. He also had localized tenderness or pain on palpation on both sides and the patella. The pain was noted to be 8/10 in severity. With regards to his left knee, the Veteran had range of motion from 5 to 85 degrees, with pain noted on examination during flexion, extension, and with weight-bearing. He also had localized tenderness or pain on palpation on both sides and the patella. The pain was noted to be 9/10 in severity. For both knees, the Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. However, the examiner surmised that, after repetitive use over time, the Veteran’s right knee range of motion would be 0 to 90 degrees, and his left knee range of motion would be extension limited to 10 degrees and flexion to 75 degrees. The examiner opined that, during a flare up, there would not be additional limitation of functional ability. The Veteran had full muscle strength and no atrophy. He had no history of recurrent subluxation or recurrent effusion. For both knees, he had slight lateral instability (1+ millimeters) on testing. On diagnostic testing, the right knee was within normal limits, while the left knee showed degenerative changes (arthritis). The 2020 DBQ examiner indicated the Veteran had decreased ability in performing activities that require going up and down stairs, sitting, standing, walking, climbing, lifting or bending – especially with repetitive or prolonged use/activity. The examiner also explained the Veteran has severe painful/limited range of motion that makes it difficult for him to stand and walk for long, both knees swell occasionally, and he has bilateral (so left and right) knee laxity. There was no acquired or traumatic genu recurvatum with objectively demonstrated weakness and insecurity in weight-bearing in either knee.   The Board is mindful of a precedent opinion of VA’s General Counsel, VAOPGCPREC 9-2004 (Sept. 17, 2004), indicating a claimant 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. However, in these claims at hand, there is no time period during which the Veteran’s disabilities have manifested in both limitation of flexion to a compensable degree and limitation of extension to a compensable degree. Essentially, he was granted 10 percent ratings to compensate him for the effect his chronic pain has on his range of motion, even accepting that he does not have sufficient limitation of motion in either knee, per se, to otherwise justify these 10 percent ratings (which are the minimum compensable ratings to be assigned in this circumstance). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause functional loss, pain itself does not constitute functional loss. The Court in Mitchell explained that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) 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 concerning 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. Rather, the pain “must actually affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance’ [under] 38 C.F.R. § 4.40 in order to constitute functional loss” warranting a higher rating. See id. at 43. Although the Veteran has reported pain, the objective clinical findings reflect that he still has significant range of motion and, as such, his existing 10 percent ratings under DCs 5260 and 5261 sufficiently compensate him – again, even when considering his chronic pain. The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997).   “Other” Knee Impairment – Including owing to Recurrent Subluxation or Lateral Instability Separate ratings may be assigned for instability (DC 5257) apart from the ratings assigned based, instead, on limitation of motion (DCs 5003, 5010, 5260 and 5261). See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). And these precedent VA General Counsel Opinions were the impetus for granting separate 10 percent additional ratings for what was determined to be “slight” instability in each knee according to DC 5257. The Board finds that higher ratings are not warranted. The Veteran would be entitled to a higher rating of 20 percent if he had “moderate” instability or an even greater rating of 30 percent if he had “severe” instability, but he does not. The record does not support those greater degrees of instability. The examinations reflect that, at most, the Veteran has had “slight” instability (May 2008), no instability (November 2016), and 1+ millimeters (July 2020, which the Board finds is slight, as opposed to moderate or severe instability). The Veteran is competent to report what he feels to be instability and giving out of his knees. In English v. Wilkie, 30 Vet. App. 347 (2018). the Court held that DC 5257 does not "speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that DC." The Court further held that "[t]he Board [cannot] categorically find objective medical evidence more probative than lay evidence with respect to [DC 5257] without supporting its conclusion with an adequate statement of reasons or bases." Id. Here, the Board finds that the clinical examinations are more probative than the lay statements as to the degree of lateral instability (the type noted in DC 5257) because the clinicians are trained in evaluating the different cartilage and ligaments of the knee and in performing the various tests to assess whether the knee is unstable or subluxed (e.g., varus and valgus, Lachman’s, etc.). Moreover, and importantly, no clinician has found more than slight instability upon examination. Thus, although the Veteran wear braces and has reported instability, the evidence does not support that it is as likely as not that his instability more closely correlates to moderate or severe instability. There equally is no basis for granting additional compensation (separate ratings) under the meniscal codes, i.e., under DCs 5258 and 5259, inasmuch as this additional impairment has not been shown. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Derivative TDIU Finally, the Board has considered whether the Veteran is entitled to a TDIU. A claim for a TDIU may be raised as a derivative claim stemming from a Veteran's claim of entitlement to an increased rating for a service-connected disability, provided the disability is at least one of the reasons he is unemployable or claims to be. See Rice v. Shinseki, 22 Vet. App. 447 (2009). To be eligible for a TDIU on a schedular basis, in cases, as here, where the Veteran has two or more service-connected disabilities, then there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). However, for purposes of making this determination, disabilities arising from common etiology or single accident or affecting both upper extremities or both lower extremities or a single bodily system will be considered as one, collective or aggregate, disability. Id. In addition to his knee disabilities, the Veteran is in receipt of service connection for bilateral pes planus, tinnitus, cirrhosis of the liver, hepatitis C, anemia, degenerative joint disease of his left great toe, and degenerative joint disease of his right great toe. During the rating period on appeal, his combined evaluation was 60 percent from April 11, 2008 to January 11, 2016, 80 percent from January 11, 2016 to January 31, 2019, and 90 percent since. Prior to January 2016, his toe, feet, and knee disabilities may be considered as one disability for purposes of a TDIU as they were determined service connected based on their relationship and because they involve the lower extremities. See 38 C.F.R. § 4.16(a). However, he did not have sufficient additional disability to bring the combined rating to 70 percent or more until January 11, 2016.   In 2011, the Veteran was placed on forced leave by his employer due to his then current medical condition that limited him to lifting 10 pounds for an hour a day, carrying mail, casing, reaching above his shoulder, and permanent restrictions. The letter does not state the reasons for the restrictions (whether due to cancer, knee, foot, and/or shoulder disability). The Veteran retired in 2013. In a November 2015 statement, he said he had been temporarily laid off from work in September 2010 due to no work being available, and then laid off again in September 2011 for the same reason. He added that he “decided to take my retirement because I was being laid-off for no reason.” During his July 2017 hearing before this Board, the Veteran testified that his retirement was actually due to a combination of physical ailments including his service-connected disabilities and a non-service-connected shoulder disability. The evidence does not reflect that his service-connected disabilities, alone, rendered him unemployable; thus, referral for extra-schedular consideration prior to January 11, 2016 is not warranted under the special provisions of § 4.16(b). A February 2016 DBQ concerning the Veteran’s feet reflects his statement that he used to work for the post office but can no longer stand for long periods of time or walk long distances. Notably, the Veteran’s disabilities prior to 2019, other than tinnitus, only involve his lower extremities, and there is not evidence that he is incapable of performing some type of work consistent with his high school education and employment experience, that is, which did not require prolonged walking or standing. He has a history of working for the postal service; thus, it reasonably can be found that, rather than be a mail carrier on a walking route, he would have the knowledge to be a mail carrier instead on a driving route. This would allow him to have substantially gainful employment without standing or walking for prolonged distances. In addition, he could reasonably work at the position allowing him to sit at the post office, or other similar place of employment, rather than stand. None of his service-connected disabilities prior to 2019 support that his mental faculties and upper extremities were impaired due to a service-connected disability. Even his tinnitus, which was noted to occur only once a day for about an hour, would not reasonably preclude substantially gainful employment. An August 2019 DBQ for the Veteran’s anemia reflects that it impacts his ability to work in that he has constant fatigue, shortness of breath, headaches, and blurred vision that cause difficulty with walking and lifting. He is in receipt of service connection for hepatitis C, cirrhosis of his liver, and anemia effective from January 31, 2019. An August 2019 DBQ for his feet shows the pain in the bottom of his feet and in his great toes cause difficulty standing, walking, and climbing. The July 2020 DBQ shows his knees cause decreased ability in performing activities that require going up and down stairs, standing, walking, climbing, lifting or bending – especially with repetitive or prolonged use activity. 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, with all this in mind and in giving the Veteran the benefit of the doubt where warranted, the Board finds that he is entitled to a TDIU effective from January 31, 2019, the date upon which he is in receipt of service connection for anemia and related diseases, and which, in combination with his other service-connected disabilities, preclude him from reentering the workforce in any substantially gainful capacity. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.