Citation Nr: 21009026 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 13-18 215 DATE: February 18, 2021 ORDER A rating of 20 percent since September 17, 2009, for left knee arthritis and post meniscectomy residuals is granted. A rating in excess of 20 percent from September 17, 2009, to November 16, 2010, for right knee arthritis and post meniscectomy is denied. A rating of 60 percent since January 1, 2012, for right knee arthritis and post meniscectomy and post total knee replacement arthroplasty is granted. A combined rating in excess of 50 percent from September 17, 2009, to November 16, 2010, is denied. A combined rating of 80 percent from January 1, 2012, to February 28, 2016, is granted. TDIU from September 17, 2009, to November 16, 2010, and from January 1, 2012, to February 28, 2016, is granted. FINDINGS OF FACT 1. Since September 17, 2009, the Veteran’s left knee disability demonstrated with flexion at worst to 100 degrees, extension at worst to 5 degrees, tenderness or pain to palpation to the medial joint, mild to moderate pain that contributed to less movement than normal, swelling, and meniscal pathology similar to frequent episodes of “locking,” pain, and effusion. 2. From September 17, 2009, to November 17, 2010, the Veteran’s right knee disability manifested with worst case flexion to 75 degrees and extension to 5 degrees after repetitive use or during a flareup, and meniscal pathology similar to frequent episodes of “locking,” pain, and effusion. 3. Since January 1, 2012, the Veteran’s right knee disability manifested with at worst 95 degrees flexion with pain, extension to 5 degrees, severe pain with weight bearing, non-weight bearing, and passive motion, swelling and effusion. 4. From September 17, 2009, to November 16, 2010, the combined rating of the Veteran’s service-connected disabilities did not warrant a disability rating in excess of 50 percent as a matter of law. 5. From January 1, 2012, to February 28, 2016, a combined rating of the Veteran’s service-connected disabilities warranted 80 percent as a matter of law. 6. The Veteran’s service-connected disabilities demonstrated marked interference with employment from September 17, 2009, to November 16, 2010. 7. From January 1, 2012, to February 28, 2016, the Veteran was unable to perform the physical and mental requirements of employment. CONCLUSIONS OF LAW 1. Since September 17, 2009, the criteria for a 20 percent disability rating for a left knee disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5258 (2019). 2. From September 17, 2009, to November 16, 2010, the criteria for a disability rating in excess of 20 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5258 (2019). 3. Since January 12, 2012, the criteria for a rating of 60 percent for a right knee disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5055 (2019). 4. The criteria for a combined rating in excess of 50 percent from September 17, 2009, to November 17, 2010, have not been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.25, 4.26 (2019). 5. The criteria for a combined rating of 80 percent from January 1, 2012, to February 28, 2016, have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.25, 4.26 (2019). 6. The criteria for TDIU from September 17, 2009, to November 16, 2010, and from January 1, 2012, to February 28, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.10, 4.16, 4.18, 4.19, 4.25 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1966 to August 1972. Effective February 29, 2016, the Veteran has a total disability evaluation based on individual unemployability (“TDIU”). The procedural histories of these claims have been thoroughly set forth in the February 2018, October 2018, May 2019, and June 2020 Board and Court of Appeals for Veterans Claims (Court or CAVC) remands and decisions. In June 2020 the Board remanded the claims for retrospective opinions. All actions ordered by the June 2020 remand have been accomplished. Increased Rating Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Musculoskeletal System 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. The 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 innervation, 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 which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). Relevant Knee Diagnostic Codes DC 5010 directs that traumatic arthritis substantiated by x-ray findings should be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a. Under DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent rating, and x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, warrants a 20 percent rating. Id. The 10 percent and 20 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. at Note 1. DC 5055 evaluates knee replacement. A 30 percent rating is assigned for a prosthetic replacement of a knee joint that results in intermediate degrees of residual weakness, pain or limitation of motion. A 60 percent rating is assigned for a prosthetic replacement of a knee joint that results in severe painful motion or weakness. A 100 percent rating may be assigned for one year following implantation of prosthesis. DC 5256 provides ratings for ankylosis of the knee. A 30 percent rating is warranted for a favorable angle in full extension or in slight flexion between 0 and 10 degrees. A 40 percent rating is warranted for a knee in flexion between 10 and 20 degrees. A 50 percent rating is warranted for a knee in flexion between 20 and 45 degrees. A 60 percent rating is warranted for a knee in extremely unfavorable flexion, at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256. DC 5257 provides ratings for recurrent subluxation or lateral instability. Slight instability warrants a 10 percent rating and a moderate instability warrants a 20 percent rating. Severe instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5257. DC 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. DC 5259 provides that a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. DC 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. DC 5261 provides ratings based on limitation of the extension of the leg. Limitation of extension to 5 degrees warrants a noncompensable rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. DC 5262 provides ratings for impairment of the tibia and fibula. A 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion, with loose motion, requiring a brace. 38 C.F.R. § 4.71a, DC 5262. DC 5263 provides a 10 percent rating for genu recurvatum that is acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a, DC 5263. The average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71, Plate II. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. See 38 C.F.R. § 4.31. Of note, 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. Terms such as “slight,” “moderate,” and “severe” are not defined in the regulatory criteria, and the Board must consider their applicability to symptoms reported in the record in a manner that is “equitable and just.” See 38 C.F.R. § 4.6. However, according to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount, “moderate” means limited in scope or effect, and “severe” means very painful or harmful or of a great degree. 1. Entitlement to a rating in excess of 10 percent from September 17, 2009, to March 25, 2019, and in excess of 20 percent since March 25, 2019, for left knee arthritis and post meniscectomy residuals Prior to filing the current claim, the Veteran’s service-connected left knee disability has been evaluated as 10 percent disabling since September 1, 1972, and 20 percent disabling since March 25, 2019, under the schedule of ratings for the musculoskeletal system. See 38 C.F.R. § 4.71a, DC 5259. The Veteran’s medical records show that the Veteran was treated for his left knee pain, but did not show the results of any left knee range of motion (ROM) testing. At a March 2013 VA medical examination, the Veteran reported that his left knee demonstrated with chronic daily stiffness and soreness with prolonged standing, and swelling after climbing up and down stairs or during flareups. The examiner noted the Veteran denied instability, locking, or falls. The Veteran also reported an ability to perform the activities of daily living, but that he did not drive due to his bilateral knee pain. The examiner diagnosed the Veteran with left knee medial meniscal tear with degenerative changes. On examination, he demonstrated normal left knee flexion to 140 degrees with pain at 135 degrees, and extension to 0 degrees with no objective evidence of pain. Repetitive use testing did not result in any additional limitation of motion. The examiner indicated that the Veteran’s left knee demonstrated functional impairment of less movement than normal, pain on movement, and swelling, with tenderness or pain on palpation. He retained normal 5/5 left knee strength. Joint stability testing indicated normal anterior, posterior, medial/lateral stability, with no evidence of patellar abnormality. The examiner did not indicate meniscal pathology although the Veteran was service-connected for a left knee meniscal tear. Imaging indicated degenerative or traumatic arthritis, without evidence of patellar subluxation. The examiner indicated the Veteran’s left knee disability did not impact his ability to work. At a February 2016 VA medical examination, the Veteran reported difficulty climbing stairs, a recent fall when his left knee “gave way,” the resumption of anti-inflammation medication, constant pain, effusion, swelling and flareups with prolonged standing or walking 100 feet. He also reported that he could hardly do anything at home although he was still able to self-care for personal hygiene, and that he used a cane for ambulation. On examination, he demonstrated left knee flexion to 110 degrees and extension to -10 degrees that contributed to functional loss. The examiner noted objective evidence of pain on weight bearing, localized tenderness or pain on palpation, and crepitus. Repetitive use resulted in additional hyperextension to -20 degrees and the examiner indicated that pain resulted in functional loss. The examiner reported the Veteran had pain, weakness and lack of endurance during flare-ups but with no additional loss of ROM. He had normal 5/5 left knee strength with no muscle atrophy. The Veteran’s left knee did not demonstrate ankylosis. Joint stability testing indicated no history of recurrent subluxation, lateral instability, to include in the anterior, posterior, medial or lateral aspects. However, the examiner noted the Veteran’s bilateral knees demonstrated a history of recurrent effusion. The examiner indicated that the Veteran had undergone a meniscectomy and had a meniscal condition that resulted in frequent episodes of joint pain and effusion. The examiner reported that the Veteran ambulated with a walker due to increasing pain, and that the functional impact of the Veteran’s bilateral knee disability included increasing problems with ambulation due to pain. Imaging indicated moderate degenerative changes at the medial compartment, severe degenerative changes at the patellofemoral compartment, with no acute fractures or significant joint effusions. At the August 2019 VA medical examination, the Veteran reported constant dull pain, especially during weight-bearing; difficulty bending and climbing up or down stairs; occasional sharp pain behind the left kneecap; and sharp pain with heavy lifting or with prolonged standing. He reported applying ice or heat provided relief, as did resting with his feet up. He reported he did not perform household chores, and that the constant pain with moving around caused lack of attention or concentration because the pain made working difficult. He reported he continued to perform the physical therapy exercises recommended and that steroid injections had previously provided some relief. ROM testing indicated flexion from 5 degrees to 110 degrees with pain that did not result in functional loss, and extension from 110 degrees to 5 degrees. The Veteran’s left knee did not demonstrate pain with weight-bearing, objective evidence of localized tenderness or pain on palpation, but did demonstrate objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional functional loss or loss of ROM. However, the examiner noted that after repetitive use testing the Veteran’s left knee demonstrated pain and lack of endurance. The examiner noted the Veteran did not describe the limitations in function after repetitive use testing in terms of ROM. The examiner noted the Veteran’s left knee demonstrated less movement than normal and disturbance of locomotion. Muscle strength testing indicated normal strength with no muscle atrophy and no ankylosis. The examiner noted the Veteran’s left knee did not demonstrate a history of recurrent subluxation, lateral instability or recurrent effusion. Joint stability testing indicated normal stability in the anterior, posterior, medial and lateral aspects. The examiner noted no tibial and/or fibular impairment. The examiner noted the Veteran’s left knee demonstrated meniscal tear and frequent episodes of joint pain. The examiner noted the Veteran’s scars from his left knee meniscectomy were stable, nontender and did not cause dysfunction. The Veteran endorsed the use of a brace, cane and walker to ambulate. The examiner noted imaging indicated bilateral degenerative or traumatic arthritis. The examiner also noted the Veteran’s bilateral knee disability did not demonstrate objective evidence of pain on passive ROM testing, or when either joint was used in non-weight bearing, and that neither knee demonstrated additional functional loss or loss of motion due to repetitive use or during a flareup. In a July 2020 retrospective opinion, the examiner reviewed the Veteran’s entire claims file. With regards to the Veteran’s left knee, the examiner noted that starting in September 2009, the Veteran’s left knee demonstrated functional ROM although with pain. For the period September 2009 to November 2010, the examiner noted the Veteran’s left knee ROM was normal, with flexion to 140 degrees and extension from 140 degrees to zero degrees. The examiner noted pain with active and passive flexion testing but without gross instability, with tenderness at the medial lateral joint lines (mild) and that the best-case scenario for the Veteran’s left knee during this period was passive ROM weight-bearing and non-weight bearing pain started at 135 degrees flexion. The examiner noted pain on weight bearing, objective evidence of tenderness, but no evidence of crepitus and no evidence of additional functional loss or loss of ROM after repetitive use. The worst-case scenario for the Veteran’s left knee during this period would be flexion to 130 degrees with pain, and extension from 130 degrees to zero degrees, with pain limiting the Veteran’s ROM during flareups a further 5 degrees to 125 degrees flexion and extension from 125 degrees to zero degrees. The examiner noted that the Veteran’s left knee would demonstrate mild pain with weight bearing and non-weight bearing passive motion and that pain would be expected to start during repetitive movements, with flareups at the terminal end of flexion and extension. For the period January 2012 onward, the examiner noted the Veteran’s left knee demonstrated normal ROM with flexion to 110 degrees and extension from 110 degrees to zero degrees with pain on active and passive terminal flexion but no gross instability, with tenderness at medial lateral joint line, and no evidence of crepitus. The examiner noted the Veteran’s left knee was able to perform repetitive use testing and that his knee did not demonstrate additional functional loss or loss of ROM with repetitive use. The examiner noted these findings were the best-case scenario for this time period, and that the Veteran’s left knee demonstrated mild pain with pain on weight bearing, non-weight bearing and passive motion. At this point the Veteran’s activities of daily living (ADLs) were still intact but with significant pain daily. As for worst case scenario, the examiner noted that pain would significantly limit the Veteran’s functional ability with repeated use over time and described the limitation of ROM as flexion from 5 degrees to 105 degrees and extension from 105 degrees to 5 degrees. And that during flareups the worst-case scenario would be described as flexion from 5 degrees to 100 degrees and extension from 100 degrees to 5 degrees. The examiner noted that the Veteran’s left knee pain during this period had increased to moderate during weight bearing, non-weight bearing and passive motion, with severe flareups limiting his ROM. The examiner noted that the functional impact of the Veteran’s left knee disability during this range was consistent with an inability to perform any physical labor or employment activities. Since September 17, 2009, the Veteran’s left knee disability demonstrated with flexion at worst to 100 degrees, extension at worst to 5 degrees, tenderness or pain to palpation to the medial joint, mild to moderate pain that contributed to less movement than normal, swelling, and meniscal pathology similar to frequent episodes of “locking,” pain, and effusion, and warrants a 20 percent evaluation under DC 5258. This is the highest schedular evaluation available for meniscus pathology. A higher rating is not warranted for the Veteran’s left knee disability under any other knee-related DC. During the appellate period the Veteran’s left knee did not demonstrate ankylosis (DC 5256); recurrent subluxation or lateral instability (DC 5257); limitation of flexion to 15 degrees to include after repetitive use or during a flareup (DC 5260); limitation of extension to 20 degrees to include after repetitive use or during a flareup (DC 5261); or tibia or fibula impairment (DC 5262). Given these facts, the Board finds that the preponderance of the evidence is against entitlement for a rating greater than 20 percent from September 17, 2009. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2019); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 2. Entitlement to a rating in excess of 20 percent from September 17, 2009, to November 16, 2010; in excess of 30 percent from January 1, 2012, to February 28, 2016, and in excess of 60 percent since February 29, 2016, for right knee arthritis and post meniscectomy and post total knee replacement arthroplasty Prior to filing the current claim, the Veteran’s service-connected right knee disability has been evaluated as 20 percent disabling since September 1, 1972, under the schedule of ratings for the musculoskeletal system. See 38 C.F.R. § 4.71a, DC 5010-5058. The Veteran received a temporary total rating from November 11, 2010, to December 31, 2011, pursuant to DC 5055 for a total knee replacement surgery and has subsequently been evaluated as 30 percent disabling since January 1, 2012, and as 60 percent disabling since February 29, 2016, under DC 5055. See 38 C.F.R. § 4.71a, DC 5055. The Veteran submitted his current claim in September 2009. In June 2009 the Veteran’s physician advised the Veteran to limit weight bearing activity due to right knee pain. In November 2009 the Veteran complained of bilateral knee pain, right more than left. The examiner noted arthralgia, joint stiffness, but no joint swelling in the Veteran’s right knee. The Veteran’s right knee demonstrated crepitus, marked medial osteoarthritis, joint line tenderness, and small effusion. A December 2009 MRI of the Veteran’s right knee indicated a completely degenerated meniscus, chronically torn anterior cruciate ligament (ACL), and severe osteoarthritis. In December 2009 the Veteran complained of worsening pain, to include with weight-bearing, lifting, exercises, walking or with any other motion of the knee, plus intermittent locking and catching. The Veteran reported pain relief with rest, elevation and ice. Right knee examination revealed extension of -5 to 95 degrees, tenderness, and severe crepitus during range of motion (ROM) testing. X-rays and MRI imaging revealed significant and severe degenerative joint disease (DJD), with severe bone spurs and osteophyte formations. He was given steroid injections to relieve the pain. In January 2010 the Veteran complained of severe bilateral knee pain. The examiner noted arthralgia, joint swelling and stiffness, but no soft-tissue swelling. The Veteran was advised to reduce physical activity, continue current medication, and consider arthropathy of the right knee. In April 2010 the Veteran reported a recent injury and fall. X-rays revealed severe arthritis with valgus deformity in the right knee. In a July 2010 bone scan prior to prosthesis placement, the examiner noted abnormal labeling of both knees, consistent with degenerative arthritis. In November 2010, he underwent total right knee replacement surgery. In October 2010, he reported that he was unable to fully extend his right knee. In May 2011, he demonstrated right knee flexion to 110 degrees and extension to 0 degrees, but had no significant instability. In a June 2011 statement the Veteran reported his history of surgeries, treatments for pain and additional symptoms such as weakness resulting in instances of falling down. At the March 2013 VA examination, the Veteran reported that his right knee demonstrated daily stiffness and soreness with prolonged standing, and daily swelling when climbing up and down stairs or during flareups. The Veteran also reported an ability to perform the activities of daily living but denied being able to drive a car due to bilateral knee pain. The examiner noted the Veteran denied instability, locking, or falls. On examination, he demonstrated right knee flexion to 100 degrees with pain and extension to 0 degrees with no objective evidence of pain. Repetitive use testing did not result in any additional limitation of motion. The examiner indicated that the Veteran demonstrated functional impairment of less movement than normal, pain on movement, and swelling, with tenderness or pain on palpation. He retained normal 5/5 right knee strength. Joint stability testing indicated normal anterior, posterior, and medial/lateral stability, with no patellar abnormality. The examiner did not indicate meniscal pathology, prior surgical procedures, or the use assistive devices. Imaging indicated traumatic or degenerative arthritis, with no evidence of patellar subluxation. The examiner did not indicate the Veteran’s right knee disability impacted his ability to work. At a February 2016 VA examination, the Veteran reported constant right knee pain; a return to use of anti-inflammation medication; worsened right knee pain than before the total knee replacement surgery, and flareups with prolonged standing or walking. He also reported that he could hardly do anything at home but was still able to take care of his personal hygiene. On examination, his right knee demonstrated flexion to 90 degrees and extension to -30 degrees that contributed to functional loss described as difficulty going up stairs. He demonstrated evidence of pain on weight bearing, localized tenderness or pain on palpation, and crepitus. Repetitive use testing indicated additional reduced flexion to 90 degrees due to pain, with similar functional loss during flareups. The examiner reported the Veteran had pain, weakness and lack of endurance during flare-ups. He had reduced 4/5 left knee strength with no muscle atrophy; no ankylosis; and no history of recurrent subluxation and lateral instability, although the Veteran was unable to perform right knee lateral testing. The examiner noted the Veteran’s bilateral knees demonstrated evidence of recurrent effusion. The examiner indicated that the Veteran had undergone a total right knee replacement surgery that resulted in chronic residuals consisting of severe painful motion or weakness and recurrent effusion. The examiner reported that the Veteran ambulated with a walker due to increasing pain. Other pertinent findings included bilateral point tenderness and an inability to perform varus/valgus pressure maneuver due to pain. The Veteran’s right knee surgical scar was not painful or unstable. The functional impact of the Veteran’s bilateral knee disabilities included increasing problems with ambulation due to pain. Imaging indicated right knee prosthesis that was intact and in good anatomic alignment without evidence of loosening or failure, with calcific densities in the supra-patella space and inferior to the patella that was indicative of a possible loose body, with no fractures or significant joint effusion. At the August 2019 VA medical examination, the Veteran reported constant dull pain behind his right kneecap with weight-bearing, difficulty climbing up or down stairs, difficulty bending, with occasional flareups after prolonged walking. He reported his right knee was worse after the replacement surgery, and that applying ice or heat provided relief. The Veteran reported he did not do any chores at home, and that he ambulated with a cane and walker. He performed physical therapy exercises in the past to some relief and that steroid injections provided some relief but neither treatments eliminated the constant dull pain. ROM testing indicated flexion to 100 degrees with pain that did not result in additional functional loss, and extension from 100 to 5 degrees. The Veteran’s right knee did not demonstrate pain with weight-bearing, objective evidence of localized tenderness or pain on palpation, or objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional functional loss or loss of ROM. However, the examiner noted that after repetitive use testing the Veteran’s right knee demonstrated pain and lack of endurance. The examiner noted the Veteran did not describe functional limitations after repetitive use testing in terms of ROM. Additional factors contributing to the Veteran’s disability included less movement than normal and disturbance of locomotion. Muscle strength testing indicated normal strength with no muscle atrophy. The Veteran’s right knee did not demonstrate ankylosis, nor a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing indicated no instability, including in the anterior, posterior, medial and lateral aspects. The examiner noted no tibial and/or fibular impairment. The Veteran’s right knee demonstrated a meniscal tear, total knee replacement surgery with intermediate degrees of residual weakness, pain or limitation of motion. The examiner noted the Veteran’s surgical scars were stable, nontender, and did not cause dysfunction. The Veteran endorsed using a brace, cane and walker to assist with ambulation. Imaging documented bilateral degenerative or traumatic arthritis. The examiner also noted the Veteran’s bilateral knee disability did not demonstrate objective evidence of pain on passive ROM testing, when the joint was used in non-weight bearing, and that neither knee demonstrated additional functional loss or loss of motion due to repetitive use or during a flareup. In a July 2020 retrospective opinion, the examiner reviewed the Veteran’s entire claims file. With regards to the Veteran’s right knee, the examiner noted that starting in September 2009, the Veteran’s right knee manifested with sufficient daily pain to include severely limited ROM. For the period September 2009 to November 2010, the examiner noted the Veteran’s right knee ROM was abnormal, with flexion to 90 degrees and extension from 90 degrees to zero degrees. The examiner noted pain at 90 degrees, pain with weight bearing, objective evidence of mild pain palpation in the inferior border of the patella and the patella tendon itself, and severe pain in the medial lateral joint lines, with evidence of pain on passive motion and crepitus. The Veteran’s right knee demonstrate no evidence of additional functional loss or loss of ROM after repetitive use. These findings indicated the best-case scenario for this time frame, and the examiner noted the Veteran’s right knee pain was severe with evidence of pain on weight bearing, non-weight bearing, and passive motion. The worst-case scenario for the Veteran’s right knee during this period would be flexion to 80 degrees and extension from 80 degrees to zero degrees, with pain contributing to the Veteran’s limited motion. During flareups the examiner noted the Veteran’s right knee demonstrated pain on weight bearing, non-weight bearing, and passive motion, as well as clicking and instability, and that his right knee ROM during a flareup would demonstrate as flexion from 5 degrees to 75 degrees and extension from 75 degrees to 5 degrees. The examiner noted the Veteran’s right knee pain would demonstrate severe pain with weight bearing, non-weight bearing and passive motion and that pain would be expected to start during repetitive movements, with flareups at the terminal end of flexion and extension. For the period January 2012 onward, the examiner noted the Veteran’s right knee demonstrated abnormal ROM, with flexion to 100 degrees and extension from 100 degrees to zero degrees with pain that did not cause additional functional loss, pain with weight bearing, localized mild tenderness to palpation about the inferior border of the patella and the patella tendon, and mild to severe tenderness to palpation about the medial lateral joint lines with evidence of pain on passive motion at the terminal end of flexion, with objective evidence of crepitus. The examiner noted these findings were the best-case scenario for this time period and that the Veteran’s right knee demonstrated severe pain on weight bearing, non-weight bearing and passive motion. The examiner also noted that the Veteran was able to perform activities of daily living but that he demonstrated significant daily pain. As for worst case scenario from January 2012 onward, the examiner noted that pain would limit the Veteran’s right knee ROM and described the limitation of ROM as flexion from 5 degrees to 100 degrees and extension from 100 degrees to 5 degrees. And that during flareups the worst-case scenario would be described as flexion from 5 to 95 degrees and extension from 95 degrees to 5 degrees. The examiner noted that the Veteran’s right knee pain during this period was severe during weight bearing, non-weight bearing, and passive motion, with severe flareups that limited his ROM. The examiner noted that the functional impact of the Veteran’s right knee disability during this range was consistent with an inability to perform any physical labor or employment activities. From September 17, 2009, to November 16, 2010, the Veteran’s right knee disability manifested with worst case flexion to 75 degrees and extension to 5 degrees after repetitive use or during a flareup, and meniscal pathology similar to frequent episodes of “locking,” pain, and effusion, and warrants a 20 percent evaluation under DC 5258. This is the highest schedular rating for meniscal pathology. A higher evaluation is not warranted during this period because the Veteran’s right knee disability did not demonstrate favorable ankylosis (DC 5256); severe recurrent subluxation or lateral instability (DC 5257); flexion limited to 15 degrees, to include after repetitive use or during a flareup (DC 5260); extension limited to 20 degrees, to include after repetitive use or during a flareup (DC 5261); or tibia and fabula impairment (DC 5262). Since January 1, 2012, the Veteran’s right knee disability manifested with at worst 95 degrees flexion with pain, extension to 5 degrees, severe pain with weight bearing, non-weight bearing, and passive motion, swelling and effusion, and warrants a 60 percent rating under DC 5055. This is the highest rating under DC 5055 after the one-year convalescence period for a total knee replacement which was the basis for a 100 percent disability evaluation. A higher rating for the Veteran’s right knee is not available in the schedule. Given these facts, the preponderance of the evidence is against entitlement to the assignment of a 20 percent evaluation from September 17, 2009, to November 17, 2010, and a 60 percent evaluation since January 1, 2012. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2019); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 3. Entitlement to a combined rating in excess of 50 percent from September 17, 2009, to November 16, 2010, and from January 1, 2012, to February 28, 2016 Under the law, disability percentages are not added to arrive at the level of disability. Rather, combined ratings are arrived at by using a formula to calculate the degree of disability caused by a service-connected disorder based on the consideration of the efficiency of the individual as a whole, as affected first by his most disabling condition, then by the less disabling conditions in the order of their severity. See 38 C.F.R. § 4.25. The Combined Ratings Table located at 38 C.F.R. § 4.25 results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled. (a) To use table I, the disabilities will first be arranged in the exact order of their severity, beginning with the greatest disability and then combined with use of table I as hereinafter indicated. For example, if there are two disabilities, the degree of one disability will be read in the left column and the degree of the other in the top row, whichever is appropriate. The figures appearing in the space where the column and row intersect will represent the combined value of the two. This combined value will then be converted to the nearest number divisible by 10, and combined values ending in 5 will be adjusted upward. If there are more than two disabilities, the disabilities will also be arranged in the exact order of their severity and the combined value for the first two will be found as previously described for two disabilities. The combined value, exactly as found in table I, will be combined with the degree of the third disability (in order of severity). The combined value for the three disabilities will be found in the space where the column and row intersect, and if there are only three disabilities will be converted to the nearest degree divisible by 10, adjusting final 5’s upward. (b) Except as otherwise provided in this schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any. All disabilities are then to be combined as described in paragraph (a) of this section. The conversion to the nearest degree divisible by 10 will be done only once per rating decision, will follow the combining of all disabilities, and will be the last procedure in determining the combined degree of disability. 38 C.F.R. § 4.25. In addition, when a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor in this section will be treated as 1 disability for the purpose of arranging in order of severity and for all further combinations. For example, with disabilities evaluated at 60 percent, 20 percent, 10 percent and 10 percent (the two 10’s representing bilateral disabilities), the order of severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent and the 68 and 20 to 74 percent, converted to 70 percent as the final degree of disability. 38 C.F.R. § 4.26. The Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs and is without authority to revise them. 38 C.F.R. § 19.5. Therefore, the Board does not have any authority to calculate the Veteran’s overall disability rating utilizing any method other than the Combined Ratings Table and 38 C.F.R. § 4.25. Prior to the period on appeal, the Veteran’s service-connected bilateral knee disabilities were evaluated as 30 percent disabling effective September 1, 1972, to include bilateral factoring of the Veteran’s bilateral knee disabilities. Following the directions set forth in 38 C.F.R. §§ 4.25 and 4.26, and given the Board’s grant of 20 percent for the Veteran’s left knee disability effective September 17, 2009, and the RO’s grant of service connection for a lumbar spine disability as 20 percent disabling effective September 17, 2009, the Veteran’s disabilities resulted in a total combined rating of 50 percent, to include bilateral factoring of the Veteran’s bilateral knee disabilities, effective September 17, 2009. Thus, even with the Board’s grant of 20 percent for the Veteran’s left knee disability, the Veteran’s total disability picture did not warrant a combined rating in excess of 50 percent prior to his temporary total rating effective November 17, 2010. Given the Board’s grant of 60 percent for the Veteran’s right knee disability effective January 1, 2012, the Veteran’s disabilities result in a total combined rating of 80 percent effective January 1, 2012, to include bilateral factoring of the Veteran’s bilateral knee disabilities. The appeal is therefore granted in part on this basis. Total Disability Rating based on Individual Unemployability A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). Provision 38 C.F.R. § 4.16 (a) establishes that the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). 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 a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. 4. Entitlement to TDIU between September 17, 2009, and November 16, 2010, and between January 1, 2012, and February 28, 2016, to include on an extraschedular basis The Veteran’s claim for TDIU was acknowledged as part and parcel of his underlying bilateral knee increased rating claim. Since that claim was filed on September 17, 2009, and given that he received a temporary total rating between November 17, 2010, and December 31, 2011, and he was awarded TDIU effective February 29, 2016, the appeal periods in question are as noted above. September 17, 2009 to November 16, 2010 During this period on appeal, given the Board’s grant of an increased rating for the Veteran’s left knee disability, service-connected disability compensation is in effect for bilateral knee disabilities at 20 percent disabling; a lumbar spine disability as 20 percent disabling; and a noncompensable right eyebrow laceration scar. The combined rating for these disabilities was 50 percent effective September 17, 2009. The initial threshold requirements for entitlement to TDIU are thus not met. Because the ratings provided under the Schedule are averages, an assigned rating may be adequate to address the average impairment in earning capacity caused by the disability, but not completely account for the Veteran’s individual circumstances. Thun v. Peake, 22 Vet. App. 111, 114 (2008). The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 4.16 (b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the Schedule for that disability. See Id. If the rating criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the Schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant’s disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant’s disability picture requires the assignment of an extraschedular rating. Id. With regards to the Veteran’s service-connected lumbar spine disability, September 2009 private treatment records indicate the Veteran demonstrate localized tenderness to palpation and decreased range of motion, with a negative straight leg raise test bilaterally. The examiner assessed the Veteran with lumbar spondylosis. In November 2009 and again in January 2010, the Veteran continued to report severe back pain. The Veteran’s bilateral knee disabilities during this period have been discussed above. In a March 2019 non-VA vocational opinion, a certified rehabilitation counselor opined that since 2009 the Veteran had at least as likely as not been precluded from securing and following work at substantially gainful activity levels due to his low back and bilateral knee conditions. The counselor noted that the Veteran’s persistent right knee pain significantly impacted the Veteran’s ability to sit, stand, walk, climb stairs, and ambulate without assistance. The counselor also noted that the Veteran reported impaired concentration, short-term memory impairment, and sleep impairment due to both chronic pain in his bilateral knees and back and as a side-effect of the prescribed pain medications. The counselor noted the Veteran’s ability to reach overhead, lift/carry, sit, stand, walk, climb stairs, balance, bend, kneel, and stoop/squat were all significantly impaired due to the Veteran’s service-connected disabilities, and that the Veteran reported that he ceased driving due in part to his low back and bilateral knee pain. The vocational counselor also noted that the Veteran’s educational and work history, including the Veteran’s statements that he had resigned or been let go from several jobs since 2009 due to impaired work performance related to his service-connected disabilities, demonstrated evidence of an inability to obtain gainful employment. The counselor noted that since the Veteran was unable to maintain any of his last three positions for even one year, his employment after 2009 should not be considered substantially gainful. The counselor stated that the Veteran’s back and bilateral knee conditions were the main reasons he could not perform prolonged sitting, standing, and walking, as evidenced by the medical and lay evidence within the record, and that these limitations would affect the Veteran’s ability to secure and follow substantially gainful employment even in a sedentary capacity, as they would render him unproductive and unreliable. Finally, the counselor opined that the amount of time the Veteran required to adjust, alternate positions, lie in bed or recline in an attempt to alleviate pain would render him off-task more than would be tolerated by employers. In a September 2019 memorandum to the Director of Compensation, the RO opined the Veteran’s service-connected disabilities did not prevent him from securing or following a substantially gainful occupation in a finance, accounting, economics, or business setting reflective of his education and training. In a November 2020 memorandum, the Director of Compensation noted the recent changes in the workforce reflected “less strenuous jobs” with an “increasing reliance on computers, internet and email” and “technological advances” that provided broad employment opportunities for the disabled with reasonable accommodations not previously available. The Director then opined that the medical evidence indicated the Veteran’s service-connected disabilities manifested with limitations of range of motion, ambulation, and weight-bearing activity, but that there was “no evidence” of an inability to perform sedentary employment due to service-connected conditions prior to February 29, 2016. The Board finds the vocational counselor’s opinion probative of the Veteran’s inability to not only obtain but to maintain gainful employment during the relevant periods on appeal. The Veteran retired from his occupation as a Controller at Cooper Lighting in early 2009, and worked part-time from January 2010 to June 2010 as a financial advisor, earning approximately $2000 per month, prior to his November 2010 right knee total replacement surgery and convalescence. The Veteran’s service-connected disabilities manifested with chronic pain that encapsulated more than just limited range of motion, but an inability to maintain concentration and to demonstrate effective focus on tasks. With resolution of the factual doubt in his favor, the Veteran’s service-connected disabilities demonstrated marked interference with employment, and grants TDIU on an extraschedular basis from September 17, 2009, to November 16, 2010. Since January 1, 2012 through February 28, 2016 During this period on appeal, given the Board’s grant of an increased rating for the Veteran’s right knee disability, service-connected disability compensation was in effect for a left knee disability at 20 percent disabling; a right knee disability at 60 percent disabling; a lumbar spine disability at 20 percent disabling; and noncompensable scar ratings. The combined rating for these disabilities was 80 percent effective January 1, 2012. The initial threshold requirements for entitlement to TDIU are thus met. The Board grants the Veteran’s claim for TDIU for the period January 1, 2012, to February 28, 2016. The Veteran was unable to perform the physical and mental requirements of employment during this period on appeal. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.