Citation Nr: 21010866 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-30 248 DATE: February 25, 2021 ORDER Entitlement to service connection for atrial fibrillation secondary to service-connected disabilities is denied. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the left knee is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The competent and probative evidence of record does not show that the Veteran’s atrial fibrillation is caused or aggravated by pain medications taken to treat his service-connected bilateral knee disabilities. 2. The Veteran’s left knee disability has not manifested by extension limited to 20 degrees any time during the period on appeal. 3. The preponderance of the evidence does not show that the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for atrial fibrillation secondary to service-connected disabilities have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to a rating in excess of 20 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5261. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1969 to October 1975. These matters are before the Board of Veterans’ Appeals on appeal from April 2012 and April 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was previously represented in this appeal by a private attorney, who is no longer accredited to represent claimants before VA. The Board recognizes that the Veteran has not appointed a new representative and is proceeding in his appeal pro se. The Board previously remanded these matters in May 2018. While in remand status, the RO issued an April 2020 rating decision awarding the Veteran an increased 20 percent rating for his left knee disability effective November 2, 2011. As this constitutes a partial grant of the benefit sought, the claim remains on appeal and has been recharacterized accordingly. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). Thereafter, the Board remanded these matters once again in June 2020 for further development. The appeal has now been properly returned to the Board for appellate consideration. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. With respect to the Veteran’s claim for service connection for atrial fibrillation, the record indicates that he primarily receives treatment for his cardiac condition from a private cardiologist, Dr. Sabbagh, in Weston, West Virginia. The record also indicates that, in July 2011, the Veteran was hospitalized with cardiac complaints at United Hospital Center (UHC), where he underwent a cardiac catheterization. Pursuant to the Board’s May 2018 and June 2020 remand directives, the RO sent the Veteran letters in June 2019 and July 2020 requesting that he either submit or authorize for release all relevant private treatment records pertaining to his cardiac condition, and provided the forms necessary to do so. An earlier request for these private treatment records had also been sent by the RO in February 2014. To date, the Veteran has not responded to any of VA’s requests to submit or identify private records or properly authorize them for release. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (further holding that “[i]f a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). The Veteran must cooperate fully with VA’s reasonable efforts to obtain relevant records, including from private medical care providers. 38 C.F.R. § 3.159(c)(1)(i). As the Veteran did not cooperate with VA’s multiple attempts to obtain potentially-relevant private treatment records, the Board finds that VA made adequate efforts to obtain any outstanding records and the duty to assist with obtaining relevant records has been satisfied. Id. As such, another remand to attempt to obtain these private treatment records is not warranted and the Board will decide the issue based on the current evidence of record. Neither the Veteran nor the record has raised any other issues with regard to VA’s duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). As such, the Board will proceed with appellate consideration of the issues on appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53-56. 1. Entitlement to service connection for atrial fibrillation secondary to service-connected disabilities The Veteran seeks entitlement to service connection for atrial fibrillation, which he contends is caused or aggravated by the pain medications he takes (or previously took) to treat his service-connected bilateral knee disabilities. As an initial matter, the Board notes that the Veteran does not contend, and the record does not suggest, that his atrial fibrillation first manifested during service or is otherwise etiologically related to his active duty service. As such, direct service connection is not for consideration here and the Board will address only whether the Veteran is entitled to service connection on a secondary basis. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (concluding that “the Board is not required sua sponte to raise and reject ‘all possible’ theories of entitlement in order to render a valid opinion” and “commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record”), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (stating that “[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory.”). In support of his claim for secondary service connection, the Veteran has stated that his private cardiologist told him that the pain medications he has taken for his bilateral knee condition, to include ibuprofen and naproxen, caused his atrial fibrillation. The Board notes that despite repeated requests, the Veteran has not submitted, or provided VA with the proper authorization to obtain, the private cardiology records documenting his treatment for atrial fibrillation. According to statements by the Veteran to his VA physicians, he was diagnosed with atrial fibrillation and congestive heart failure in July 2011 after being hospitalized at UHC for unspecified cardiac symptoms. He underwent cardiac catheterization which revealed a 20 percent obstruction in one of his vessels. Thereafter, the Veteran has continued to report that he is followed and treated for his heart problems by a private cardiologist, Dr. Sabbagh. The Veteran underwent a general VA examination in March 2012. He reported to the examiner that he was diagnosed with atrial fibrillation in July 2011 and is followed by a private cardiologist. He was noted to be prescribed a blood thinner, beta blocker, and diuretic for his heart. He stated that his atrial fibrillation is intermittent and that the medications typically keep his pulse low and prevent palpitations. The Veteran reported to the examiner that he was off work from July 2011 to November 2011 due to his heart condition and that his private cardiologist did not want him to return to work but he had to because he had bills to pay. The VA examiner did not provide an etiology opinion with regard to the Veteran’s atrial fibrillation. At a December 2013 hearing before a Decision Review Officer (DRO), the Veteran testified that used to take about 2000mg of Nuprin (i.e. ibuprofen) per day to treat the pain in his knees, but that his cardiologist made him stop because the medication affects his atrial fibrillation. An October 2018 VA treatment note indicates that during a routine appointment, the Veteran was found to have an erratic pulse. An electrocardiogram (EKG) was ordered, which showed atrial fibrillation with rapid ventricular response. The Veteran underwent a VA heart conditions examination in November 2019. The Veteran repeated the same history as above regarding his diagnosis and treatment for atrial fibrillation. He also reported to the VA examiner that he has been told by his cardiologist and another doctor that his condition could have been caused by “taking so much Aleve” since “they said there is really nothing [else] they can point to that causes [atrial fibrillation.]” The VA examiner remarked that the Veteran’s history is consistent with paroxysmal atrial fibrillation but that she cannot confirm this since the Veteran’s non-VA cardiology records are not available for her review. An EKG performed at the time of the examination showed normal ejection fraction with evidence of mild dilation in one chamber of the heart, but no severe valvular disease. In a note to the Veteran, the examiner stated that “since I do not have the records from your cardiologist, I do not know if this is a new finding. You are encouraged to follow-up with your cardiologist to review these results.” The VA examiner declined to provide an etiology opinion as to whether the Veteran’s atrial fibrillation is caused or aggravated by the medications he takes for his bilateral knee disability and stated that it would be mere speculation to do so without the benefit of reviewing the Veteran’s private cardiology records. The examiner further stated that “it is irresponsible and unethical to attempt to form an opinion” without first reviewing the medical records, which would describe the circumstances of the diagnosis of atrial fibrillation, such as any pre-existing cardiac conditions and the results of the EKGs and catheterization performed at the time of diagnosis. In September 2020, VA attempted to obtain another medical opinion from the November 2019 VA examiner. The VA examiner again declined to provide an opinion with regard to secondary service connection, stating: “Again I am being directed to provide an opinion with no medical evidence. I will not be forced to provide an opinion with this complete lack of records. I have been told to provide an opinion [as to whether] medications taken for the service-connected knee condition have aggravated the heart condition. In order to do this, I need documentation: what medications and when they were prescribed? When was the atrial fibrillation diagnosed and what underlying heart conditions were present at the time of diagnosis? The Veteran was already established with and seeing a cardiologist prior to being diagnosed with atrial fibrillation. Given that the records are not available for my review, I do not know what pre-existing cardiac condition the Veteran had prior to the onset of his atrial fibrillation.” The VA examiner concluded that if the Veteran’s private cardiology records are obtained, she would be happy to revisit the medical opinion request. Based on the foregoing, the Board finds that the Veteran’s claim for service connection for atrial fibrillation on a secondary basis must be denied because there is no competent or credible evidence that pain medications he took to treat his knee pain either caused or aggravated his atrial fibrillation. In making this finding, the Board recognizes that the Veteran has consistently maintained throughout the pendency of his appeal that his private cardiologist, Dr. Sabbagh, has suggested that such a nexus exists. However, the Board finds it significant that the Veteran has not obtained a medical opinion from his private cardiologist, nor has he submitted or authorized for release any cardiology records that could help to substantiate his claim for service connection. The Board emphasizes that if the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given the Veteran’s failure to cooperate with VA’s repeated efforts to obtain these outstanding medical records, the Board has had to consider the merits of his claim without the potentially-valuable information that could have otherwise been provided by his private cardiology records. Relatedly, the Board also acknowledges that a VA examiner twice declined to provide a medical opinion as to the etiology of the Veteran’s atrial fibrillation because she did not have access to the Veteran’s cardiology records. The VA examiner explained that without reviewing these records, which would provide critical contemporaneous information at the time of the Veteran’s diagnosis, such as any preexisting cardiac conditions, EKG results, and the catheterization report, she could not provide an opinion as to the nature and etiology of the Veteran’s atrial fibrillation without resorting to mere speculation. The Board notes that a VA examiner may decline to provide a medical opinion on the basis of speculation as long as the examiner provides a well-reasoned explanation for such an opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Furthermore, an examiner’s conclusion that a diagnosis or etiology opinion is not possible without resorting to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. Id. at 390. The Board finds that the VA examiner provided a well-reasoned explanation for her inability to provide an opinion, which is supported by the Board’s own review of the evidence of record, and therefore, the Board accepts the examiner’s medical conclusion that an etiology opinion is not possible given the circumstances of this case. The Board notes that the only evidence of record in support of the Veteran’s claim are his own lay assertions that his atrial fibrillation is secondary to pain medications he takes, or took in the past, for his service-connected bilateral knee disability. The Veteran is competent to report his medical history and current symptoms of disability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a lay person not shown to possess medical training or expertise, he is not competent to render a persuasive or competent medical opinion as to the etiology of his current heart condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Thus, the Veteran’s unsubstantiated lay assertions are not probative to establish a nexus between his atrial fibrillation and service-connected knee disabilities. Accordingly, absent competent, credible, and probative evidence of the existence of a nexus between the Veteran’s atrial fibrillation and the medications he takes or has previously taken to treat his service-connected bilateral knee disability, the Board finds that the preponderance of the evidence is against finding that the Veteran’s atrial fibrillation is etiologically related to military service. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits.”); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not for application. Accordingly, the Veteran’s service connection claim for atrial fibrillation secondary to the service-connected bilateral knee disability is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in all increased rating claims, when the factual findings show distinct time periods during which the Veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the left knee The Veteran generally contends that he is entitled to an increased rating for his service-connected left knee disability because his symptoms are more severe than contemplated by his currently-assigned rating. The Veteran is in receipt of a 20 percent rating for his left knee disability, diagnosed as degenerative joint disease, under Diagnostic Codes 5003-5261. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional code to identify the basis for the rating assigned. See 38 C.F.R. § 4.27. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 38 C.F.R. § 4.71a. As the Veteran’s left knee disability manifests by limitation of motion, the disability will be rated based on the diagnostic codes concerning limitation of motion of the knee. Therefore, the Board’s analysis will begin with Diagnostic Code 5261, which contemplates the criteria for limitation of extension of the knee. Under Diagnostic Code 5261, in relevant part, 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. Finally, where extension is limited to 45 degrees, a maximum 50 percent rating may be assigned. 38 C.F.R. § 4.71a. The Board notes that separate ratings under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension) may be assigned for disability of the same joint. See VAOPGCPREC 9-04 (September 17, 2004). As such, Diagnostic Code 5260 may potentially be for application here. Under Diagnostic Code 5260, flexion limited to 60 degrees is noncompensable. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Finally, where flexion is limited to 15 degrees, a maximum 30 percent rating may be assigned. 38 C.F.R. § 4.71a. For reference, normal range of motion of the knee is 140 degrees of flexion and zero degrees of extension. See id. at Plate II. When evaluating disabilities of the musculoskeletal system predicated on limitation of motion, 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. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity, or atrophy of disuse. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during periods of flare-up. See DeLuca, 8 Vet. App. at 206; see also Johnson v. Brown, 9 Vet. App. 7 (1996). In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. § 4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38 C.F.R. §§ 4.40, 4.45, that actually limited motion. Id. at 37. The Board notes that the Veteran filed his claim for an increased rating for his left knee disability in November 2011. Therefore, in its analysis, the Board may only consider the relevant evidence up to one year prior to the date of the claim. Turning to the relevant evidence of record, the Board initially notes that VA treatment records show that the Veteran has consistently reported and sought treatment for chronic left knee pain and osteoarthritis throughout the duration of the period on appeal. During this period, the Veteran has attempted to treat his pain with over-the-counter pain medications such as Aleve and Tylenol, use of a TENS unit, injections, and the occasional use of a brace. The Veteran underwent a VA knee conditions examination in March 2012. Imaging conducted at the time of the examination showed joint space narrowing indicating articular cartilage loss and patellofemoral articulation degenerative changes of the left knee. He was diagnosed with degenerative joint disease of the left knee with anterior cruciate ligament (ACL) and meniscal tears. The Veteran reported constant pain in his left knee with occasional swelling; he also reported that it frequently “catches” and “cracks.” Treatment was noted to be with TENS unit, activity restrictions, and hinged knee brace with strenuous activity, but no current medication. The Veteran reported that he experiences flare-ups with knee pain aggravated by walking on concrete or blacktop. Range of motion of the left knee revealed flexion to 110 degrees and extension to zero degrees, indicating no limitation of extension. There was no objective evidence of painful motion. There was no additional limitation in range of motion following repetitive-use testing. The Veteran was noted to have functional loss and/or impairment of the left knee due to less movement than normal and crepitus. The Veteran had tenderness or pain to palpation for joint line or soft tissue. Muscle strength testing was normal. Joint stability testing of the left knee revealed anterior instability of 1+; however, there was no posterior instability or medial-lateral instability. There was no evidence or history of recurrent patellar subluxation or dislocation. There was no genu recurvatum or tibia and/or fibular impairment. The Veteran’s left knee was noted to have meniscal tear with frequent episodes of joint “locking,” joint pain, and joint effusion; there was no meniscectomy. The Veteran under another VA knee conditions examination in November 2019. Upon examination, he reported constant aching pain in his left knee, as well as instability, “locking” or “catching,” and occasional swelling. He reported experiencing flare-ups of his left knee disability which are precipitated by prolonged walking, squatting, or kneeling. He stated that flare-ups last about an hour in duration and are alleviated with time and that he “just push[es] on.” During these flare-ups, he described the pain as going from “a 6 to an 8.” Range of motion testing of the left knee revealed flexion to 100 degrees and extension to 10 degrees. Pain was noted on testing with both flexion and extension and caused functional loss. There was pain with weight bearing, objective evidence of localized tenderness or pain on palpation of the joint, and objective evidence of crepitus. The Veteran performed repetitive use testing with at least three repetitions, which revealed additional functional loss or limitation of range of motion due to pain. Range of motion after three repetitions revealed flexion to 95 degrees and extension to 15 degrees. The Veteran was not examined immediately after repetitive use over time or during a period of flare-up. However, the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and/or during periods of flare-ups. Pain, weakness, fatiguability or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare-ups. The examiner remarked that “after examination of the Veteran, listening to [his] complete history and current subjective complaints, combined with a review of the available records, I have no basis to offer additional losses of function or motion when it comes to a flare-up. There is no evidence that flare-ups significantly limit functional ability. The Veteran notes flare-ups with kneeling and squatting but acknowledges that he just pushes on and doesn’t pay attention to it. This, in my opinion, does not represent a significant limit of functional ability as the Veteran is able to continue with his task.” Muscle strength of the left knee was normal. There was no ankylosis. The examiner found that there was no history of recurrent subluxation or lateral instability, but the Veteran reported chronic edema in the left knee that was not evident at the time of the examination. Joint stability testing of the left knee showed 1+ anterior instability and normal posterior instability, medial instability, and lateral instability tests. The Veteran did not have recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran’s left knee was noted to show meniscal tear, frequent episodes of joint “locking,” joint pain, and joint effusion. Imaging was noted to show degenerative or traumatic arthritis. Based on the foregoing evidence of record, the Board finds that an increased rating based on limitation of extension is not warranted for the Veteran’s left knee disability at any time. The next higher rating of 30 percent under Diagnostic Code 5261 requires extension of the knee limited to 20 degrees. However, as outlined above, the objective medical evidence demonstrates that the Veteran’s left knee extension was limited to, at most, 15 degrees, which was demonstrated following repetitive-use testing. See November 2019 VA examination report. During the appeal period, the evidence does not suggest at any time that the Veteran’s left knee disability manifested by, or more closely approximated, extension limited to 20 degrees. In making this determination, the Board has fully considered whether a higher rating can be assigned based on consideration of the factors addressed in 38 C.F.R. §§ 4.40, 4.45, and DeLuca, 8 Vet. App. at 204-07. In this regard, the evidence of record shows that the Veteran has consistently reported experiencing pain, painful motion, swelling, and instability in his left knee, especially after increased activity. Moreover, he has described experiencing periods of flare-up and functional loss due to increased pain with prolonged walking, squatting, and kneeling. The Veteran is competent to report these symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Therefore, the Board acknowledges that the Veteran experiences additional functional loss due to factors such as pain during periods of flare-up or after repeated use over time. However, he indicated at the November 2019 VA examination that he is able to “just push on” during these periods of increased symptomatology and continue his current task or activity. This description led the VA examiner to opine that pain, weakness, fatiguability, or incoordination would not significantly limit functional ability with repeated use over a period of time or during periods of flare-up. Upon review of the Veteran’s statements and the other objective findings of record, the Board can find no basis to conclude that the Veteran’s left knee impairment, during periods of flare-up, would result in additional limitation of range of motion in extension beyond the additional 5 degrees found on the most recent VA examination after repetitive use testing. Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, as well as the Veteran’s reports of increased pain and functional impairment during periods of flare-up, the Board does not find any evidence to conclude that the Veteran’s functional losses equate to the criteria required for a 30 percent or greater rating for the left knee. See 38 C.F.R. §§ 4.40, 4.45; DeLuca at 204-07; see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). Moreover, as the Veteran’s subjective reports of pain, painful motion, and swelling are already contemplated by his currently-assigned 20 percent rating, the assignment of a higher rating under DeLuca is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Next, the Board has considered whether a separate compensable rating is warranted based on limitation of flexion of the left knee. However, the Board notes that the Veteran has been shown to have flexion limited to, at most, 95 degrees, which was revealed at the most recent VA examination following repetitive-use testing. See November 2019 VA examination report. There is no subjective or clinical evidence to suggest that the Veteran’s left knee disability manifested by, or more closely approximated, flexion limited to 45 degrees at any time so to warrant a compensable, 10 percent rating. As such, a separate rating under Diagnostic Code 5260 for limitation of flexion of the left knee is not warranted. Finally, the Board has considered whether the Veteran is eligible for a separate rating under any other potentially applicable diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran is already in receipt of a separate 10 percent rating for instability of the left knee under Diagnostic Code 5257 and a separate 20 percent rating for meniscus tear of the left knee under Diagnostic Code 5258. Moreover, there is no evidence during the period on appeal of ankylosis, removed semilunar cartilage, tibia and fibula impairment, or genu recurvatum in the left knee. As such, the Board finds that separate ratings under Diagnostic Codes 5256, 5262, or 5263 are not warranted. In reaching the above conclusions, the Board acknowledges that the Veteran sincerely believes his symptoms are more severe than contemplated by his currently-assigned 20 percent rating for his left knee degenerative joint disease. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of pain and other symptomatology. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno, 6 Vet. App. at 469-71. While the Board has considered the lay statements of record, and has given them appropriate weight where they are consistent with the objective medical evidence of record, the Board has accorded greater probative weight to the objective evidence of record as VA clinicians and examiners have the requisite medical training and expertise to make complex medical determinations. Therefore, the medical evidence is more probative regarding the current level of severity of the Veteran’s disability, and the most probative medical evidence has shown that his left knee disability is no more than 20 percent disabling under the applicable criteria. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for degenerative joint disease of the left knee at any time during the period on appeal. Therefore, the benefit-of-the-doubt rule does not apply and the Veteran’s claim for an increased rating for his left knee disability must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 3. Entitlement to a TDIU The Veteran generally contends that his service-connected disabilities prevent him from securing and following a substantially gainful occupation. The Veteran filed an informal claim for entitlement to a TDIU in November 2011. In February 2012, September 2019, and August 2020, the RO sent the Veteran VA Form 21-8940 Application for Increased Compensation Based on Unemployability. To date, the Veteran has not returned a completed VA Form 21-8940. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered as one disability. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the veteran’s service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage.  38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991).  In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator.  Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013).  Thus, the conclusions of VA examiners are not dispositive.  However, the observations of the examiners regarding functional impairment due to service-connected disability go to the question of physical or mental limitations that may impact the veteran’s ability to obtain and maintain employment.  The Veteran is currently service-connected for degenerative joint disease of the left knee (rated 20 percent disabling); meniscus tear of the left knee (rated 20 percent disabling); instability of the left knee (rated 10 percent disabling); retropatellar pain syndrome of the right knee (rated 10 percent disabling); degenerative joint disease of the lumbar spine (rated 10 percent disabling); sciatica of the right lower extremity (rated 10 percent disabling); and sciatica of the left lower extremity (rated 10 percent disabling). From February 27, 2014, the Veteran’s service-connected disabilities, with consideration of the bilateral factor, combine to a 70 percent rating. See 38 C.F.R. §§ 4.25, Combined Ratings Table; 4.26, Bilateral Factor. Moreover, since the Veteran’s three separately-rated disabilities of the left knee are of common etiology, they may be recognized as one disability for purposes of meeting the percentage requirements for a schedular TDIU. See 38 C.F.R. § 4.16(a). Applying the Combined Ratings Table, the Board finds that these disabilities combine to a 40 percent rating. See 38 C.F.R. § 4.25. As such, the Veteran meets the criteria under 38 C.F.R. § 4.16(a) for consideration of a schedular TDIU based on a combined rating of 70 percent with one disability (those resulting from a common etiology) rated at least 40 percent. Thus, the question before the Board is whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment consistent with his educational and occupational background. The evidence of record indicates that following separation from military service, the Veteran worked in a coal mine for three years. Thereafter, in approximately 1978, the Veteran began working as a technician at a telephone company. He worked there for 33 years before retiring in 2012. According to statements the Veteran made to his VA physicians, he took medical leave from his job from August 2011 to November 2011 due to his nonservice-connected heart condition. The Veteran underwent a VA knee conditions examination in March 2012. The Veteran reported that he is a telephone line maintenance man and that his job requires him to regularly climb ladders and telephone poles, but that he also gets assistance from the use of a bucket truck. He reported that he experiences increased knee pain that can last for a couple of days whenever he has to climb a pole or stand on a ladder for more than 10 or 15 minutes. The VA examiner opined that the Veteran’s bilateral knee disability makes physical employment difficult, but does not prevent it or sedentary employment, as evidenced by the fact that the Veteran is currently employed full time. According to a May 2013 VA treatment note, the Veteran reported to his treating physician that his activity level is one-third of what it used to be due to his atrial fibrillation and retirement. He typically tries to walk about one mile per day either outside or on his in-home exercise equipment. He also reported that he works outside tending to his house and yard. At a December 2013 DRO hearing, the Veteran testified that over the course of his 33 year career working in maintaining and repairing telephone lines and poles, he had to take off approximately 13 months total due to his bilateral knee pain. He also stated that his company made concessions for him due to his bilateral knee and back pain, which he described as being given a bucket truck to perform his work so that he would not have to climb as many telephone poles. The Veteran also testified that the main reason he ultimately retired was because when he was diagnosed with atrial fibrillation, he could no longer take pain medication for his knees and back. He stated that the pain in his knees and back became so bad, he “finally just gave up and retired.” According to an August 2014 VA treatment record, the Veteran reported that he stays active by taking care of the animals on his farm, mowing the lawn, and walking a couple of miles per day with his dog. The Veteran underwent a VA knee conditions examination in November 2019. Upon examination, the Veteran reported that he can no longer walk three miles per day due to his bilateral knee pain. The VA examiner determined that the Veteran’s bilateral knee disability impacts his ability to perform occupational tasks. She stated that tasks requiring squatting, kneeling, or high impact should be avoided given the extra strain they place on the knees and that walking should be limited to short durations or with frequent breaks. Otherwise, the examiner opined that the Veteran has no limitation on sedentary tasks due to his bilateral knee disability. The Veteran also underwent a lumbar spine examination in November 2019. He reported that prolonged sitting or bending aggravates his low back pain and causes sciatic pain down his buttocks. The examiner determined that the Veteran’s lumbar spine disability and associated lower extremity sciatica would limit prolonged or repetitive bending, lifting, and other physically-demanding tasks. The examiner opined that the Veteran could perform sedentary tasks with frequent breaks and position changes due to his bilateral lumbar spine disability. At a November 2019 VA heart conditions examination, the Veteran reported that he “stays pretty active. I’ve got a farm with a couple cows and chickens. I weed… and cut trees. I live alone so I stay busy. I used to walk three miles a day but I had to give that up because it makes my knees hurt so bad.” Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. In this regard, although the Veteran clearly experiences some functional impact due to his service-connected disabilities, and in fact, has been awarded a combined 70 percent disability rating in light of such impairment, his disabilities do not result in total occupational impairment. Although the Veteran’s bilateral knee and low back disabilities may prevent him from being able to perform his prior occupational task of repairing telephone lines and poles, including regularly climbing ladders and telephone poles, by his own account, he is still able to perform many physical tasks. The Veteran reports that although he cannot walk as many miles as he used to, he remains active tending to his farm, animals, and yard. He is able to weed gardens, cut trees, and mow his lawn. Therefore, although his service-connected disabilities undoubtedly cause him pain and stiffness, which is worsened by physically demanding labor, the evidence of record does not suggest that this functional impairment would prevent the Veteran from performing light to moderate physical occupational tasks. Moreover, there is no evidence that the Veteran could not obtain or follow gainful employment of a sedentary nature as long as he was afforded frequent breaks and position changes. In summary, the medical evidence of record does not suggest that the Veteran is unemployable due to his service-connected disabilities of the bilateral knees, lumbar spine, and lower extremities. Furthermore, the Board finds it significant that the Veteran did not respond to three requests from VA to provide further information needed to substantiate his claim for a TDIU. In making this finding, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent that service-connected disabilities affect the Veteran’s employment, the assigned schedular ratings for his disabilities already compensate the Veteran for such impairment. (Continued on next page) Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the Veteran’s claim for entitlement to a TDIU must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, Associate Counsel 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.