Citation Nr: 21011350 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-01 142 DATE: March 1, 2021 ORDER Entitlement to a rating higher than 20 percent for degenerative arthritis of the cervical spine with intervertebral disc syndrome is denied. Entitlement to increased ratings for left knee degenerative joint disease (other than instability), currently rated as 10 percent disabling for limitation of flexion (based on painful limitation of motion and arthritis), prior to October 30, 2020, and as noncompensable for limitation of extension, prior to October 30, 2020, and as 20 percent disabling, thereafter, is denied. From October 1, 2020, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Even when considering functional impairment caused by factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint, as well as actually painful, unstable, or malaligned joints due to healed injury, the Veteran's degenerative arthritis of the cervical spine with intervertebral disc syndrome is not manifested by forward cervical flexion to 15 degrees or less, favorable ankylosis of the entire cervical spine, or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. Even when considering functional impairment caused by factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint, as well as actually painful, unstable, or malaligned joints due to healed injury, the Veteran's left knee DJD is not manifested by limitation of flexion to at least 30 degrees, limitation of extension to 5 degrees, prior to October 30, 2020, or to 20 degrees, from October 30, 2020, ankylosis, dislocation of semilunar cartilage, malunion of the tibia and fibula, or genu recurvatum; his pain is more directly related to degenerative arthritis changes and not directly due to past meniscal problems. 3. Resolving all reasonable doubt in his favor, the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation, from October 1, 2020. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative arthritis of the cervical spine with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for increased ratings for left knee degenerative joint disease (other than instability) are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5256-5263. 3. From October 1, 2020, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1971 to July 1983. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in June 2013 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. These issues were denied by the Board in a June 2015 decision. The Veteran appealed the June 2015 denial to the United States Court of Appeals for Veterans Claims (Court). In September 2016, pursuant to a Joint Motion for Partial Remand (JMPR), the June 2015 Board decision was vacated and remanded back to the Board. In April 2017, the Board remanded these claims for additional development. In a May 2018 decision, the Board denied the Veteran’s claims for increased ratings. The Veteran again appealed to the Court, which partially vacated the May 2018 Board decision and remanded the issues back to the Board in January 2019. As noted in the January 2019 JMPR, the issues of entitlement to an increased rating for left knee instability and entitlement to compensation under 38 U.S.C. § 1151 for an additional disability claimed as peripheral neuropathy of the bilateral lower extremities were deemed abandoned. In August 2019, the Board remanded these claims for additional development. In a June 2020 rating decision, the RO granted a separate 30 percent rating for left upper extremity peripheral neuropathy, as secondary to service-connected neck injury residuals, effective January 2, 2020. The Veteran has not expressed disagreement with the rating or effective date assigned for his left upper extremity peripheral neuropathy; this issue is not before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); Waddell v. Wilkie, No. 17-0438, 2018 U.S. App. Vet. Claims LEXIS 1463 (Nov. 1, 2018) (unpublished single-judge disposition); John v. Shulkin, No. 16-2487, 2018 U.S. App. Vet. Claims LEXIS 116 (Jan. 31, 2018) (unpublished single-judge disposition); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a non-precedential decision may be cited for any persuasiveness or reasoning it contains). Increased Ratings 1. Entitlement to a rating higher than 20 percent for degenerative arthritis of the cervical spine with intervertebral disc syndrome. The Veteran seeks entitlement to an increased rating for his service-connected cervical spine. Service connection for a cervical spine disability was granted in a December 1984 rating decision, at which time a 20 percent rating was assigned, effective July 1983. A claim for an increased rating was received in September 2009. The Veteran’s cervical spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5243, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The new Diagnostic Code 5243 states the diagnostic code should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root and Diagnostic Code 5242 should be assigned for all other disc diagnoses. The Board notes that the rating criteria remained the same, however, as the prior version. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A higher 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination. The Veteran underwent a VA examination in October 2009. The resulting examination report notes that the Veteran reported pain in the cervical area with radiation into the right arm and shoulder. He reported that he puts his right arm above and behind his head to relieve pain in the neck and cervical area. He reported that his left index finger and thumb are numb in the morning and resolve as the day progresses. He reported that he does not treat his neck. He reported that, on flare-up, he cannot wear a motorcycle helmet, and that he has trouble with cervical motion when driving his truck. On examination, no soft tissue, bony tenderness, or deformity of the cervical spine was noted. Tenderness was noted overlying the right levator scapula muscle along its course. Spurling’s was negative. No muscle atrophy was present. Upper extremity strength was 5/5 without fatigue, pain, or motion changed with repetitive testing. Forward flexion was from 0 to 45 degrees, without pain. Extension was from 0 to 30 degrees, without pain, and was limited by “bull neck” and obesity. Lateral left and right flexion were from 0 to 35 degrees, with pain beginning at 35 degrees. Left rotation was from 0 to 80 degrees, without pain. Right rotation was from 0 to 65 degrees, with pain beginning at 65 degrees. Cranial nerves II through XII were grossly intact. Romberg was negative. The Veteran was able to rock up on his heels and raise up on his toes and take several steps forward without difficulty. Deep tendon reflexes were 2+ and symmetric. No monofilament deficits were present bilaterally at C5, 6, 7, or 8. In listing the diagnosis, the examiner noted that there was no evidence of cervical radicular findings. The Veteran also underwent a VA examination in October 2012. The resulting examination report notes that the Veteran reported that he has constant dull, aching pain at 5 out of 10 severity and that, with excessive use, the pain increases to 8 out of 10 and becomes sharp and stabbing. He reported that he has positional left arm and hand numbness. He reported limitations with all activities that require the use of the neck, noting that he has difficulty turning his head, looking upwards, and reaching upwards. He reported flare-ups in that excessive use and weather changes cause increased pain. On examination, forward flexion ended at 45 degrees or greater, with objective evidence of painful motion beginning at 25 degrees. Extension ended at 45 degrees or greater, with objective evidence of painful motion beginning at 20 degrees. Right lateral flexion ended at 25 degrees, with objective evidence of painful motion beginning at 20 degrees. Left lateral flexion ended at 30 degrees, with objective evidence of painful motion beginning at 20 degrees. Right lateral rotation ended at 60 degrees, with objective evidence of painful motion beginning at 40 degrees. Left lateral rotation ended at 60 degrees, with objective evidence of painful motion beginning at 30 degrees. The Veteran was able to perform repetitive use testing with three repetitions. Post-test flexion and extension ended at 45 degrees or greater. Post-test right lateral flexion ended at 25 degrees, while left lateral flexion ended at 30 degrees. Post-test right and left lateral rotation ended at 60 degrees. The examiner noted that the Veteran did not have additional limitation in range of motion of the cervical spine following repetitive use testing. He had functional impairment due to less movement than normal, weakened movement, and pain on movement. The Veteran did not have localized tenderness or pain to palpation for the joints/soft tissue of the cervical spine. The Veteran did not have guarding or muscle spasm of the cervical spine. Muscle strength in the elbows, wrists, and fingers was 5/5. The Veteran did not have muscle atrophy. Biceps, triceps, and brachioradialis deep tendon reflexes were normal. Sensation to light touch was decreased in the bilateral shoulders (C5) and inner/outer forearms (C6/T1) but was normal in the hands and fingers (C6-8). The Veteran was noted to not have radicular pain or any other signs or symptoms due to radiculopathy. The Veteran did not have any other neurologic abnormalities related to a cervical spine condition. He did not have intervertebral disc syndrome. He did not use any assistive devices. The Veteran did not have any scars related to his cervical spine disability. It was noted that the Veteran’s cervical spine disability impacts his ability to work, in that the Veteran is limited with all activities that require the use of his neck, and it noted that the Veteran reported that he can do sedentary work. The examiner noted an impression of cervical strain and that review of the records revealed no apparent diagnosis of cervical radiculopathy, which is supported by the October 2009 VA examination report. The examiner noted that the current examination showed positive Phalen’s which could indicate carpal tunnel syndrome as a source of some of his complaints. At his June 2013 Board hearing, the Veteran testified that he has neck problems every day. He has difficulty turning his head left and right. He reported that there are days when it is worse than others, but that does not occur too often. He reported that he has aches and pains that occur when he sits for a long time, such as when he is driving for long periods of time and starts to lose the use of his left arm. He reported that he sometimes has trouble sitting down in the morning. The September 2016 JMPR determined that both the October 2009 and October 2012 VA examinations failed to offer an opinion or analysis of the impact of flare-ups on the Veteran’s functional ability and the Board was directed to obtain new VA examinations that specifically addressed the Veteran’s additional functional loss due to flare-ups. The Veteran was afforded a VA examination in June 2017. He reported that since his last VA rating examination in October 2012 his neck had worsened. His baseline pain could vary from 0 on a scale of 10 (0/10) to 5–6/10, and during flare-ups it could be 10/10. He was not able identify what caused flare-ups but stated that his neck pain went down left side of the neck into the left shoulder and into the left arm. Massage helped somewhat, and he also used a special pillow at night when sleeping. He wore a neck brace on occasions and his routine pain medications were Hydrocodone and Acetaminophen. He complained of decreased ability to turn his neck all the time. He reported that when his neck pain flared “everything comes to a stop and I cannot do anything.” It was reported that the Veteran worked part-time as a bus driver and when he had a flare-up of neck pain, he could not drive at all. But when he was not having a flare-up of neck pain, he was able to drive a bus. He reported that he liked to be able to work and was hoping he would be able to return to college and get training to be a substance abuse counselor someday. The Veteran noted that the chronic neck disability with pain in the neck and radiation of pain into the left shoulder and arm was continuing but it was not significantly changed. It was reported that in March 2017 he was seen by a VA chiropractor for low back pain radiating into his knees and was noted to have a history of cervical pain also, but the problem addressed was low back pain. There were no private clinical records regarding any change reported in a chronic problem of the neck and left shoulder/arm pain, and the problem appeared stable. The examiner noted that the Veteran was right-handed. On physical examination the Veteran’s cervical flexion was to 30 degrees (normal being to 45 degrees), extension was to 25 degrees (normal being to 45 degrees), right lateral flexion and left lateral flexion were each to 30 degrees (with normal being to 45 degrees), and rotation to the right was to 50 degrees and to the left it was 60 degrees (with normal being to 80 degrees). He had pain in all planes of motion. The examiner reported that the range of motion itself did not contribute to functional loss and that although pain was noted on examination, it did not result in or cause functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine (neck). The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. The examiner reported that the examination results were neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner reported that he was unable to state, without resorting to mere speculation, whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examination was not conducted during a flare-up, and the examiner reported that the examination results were neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. Similarly, the examiner was unable to state, without resorting to mere speculation, whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner reported that the Veteran did not have guarding, or muscle spasm of the cervical spine. Strength inflexion and extension of each elbow and each wrist, and the fingers, was normal, at 5/5. There was no muscle atrophy and no spinal ankylosis. Deep tendon reflexes (DTRs) were normal in the right arm but absent in the left arm. However, sensation to light touch (dermatomes) was normal in each arm at the shoulders (C5), the inner and outer forearms (C6-T1), and the hands and fingers (c6 –C8). It was reported that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The Veteran did not have any other neurologic abnormalities related to a cervical spine (neck) condition and he did not have cervical spine IVDS. The Veteran occasionally wore a neck brace when he had a flare-up of the pain. There were no other pertinent physical findings, complications, conditions, signs or symptoms. X-rays had confirmed cervical DJD but there was no vertebral fracture with loss of 50 percent or more of height. With respect to cervical spine (neck) condition’s impact on the Veteran’s ability to work the examiner again noted that the Veteran reported having complained of decreased ability to turn his neck all the time, and when there was a flare-up of neck pain he reported that “everything comes to a stop and I cannot do anything.” As to whether pain, weakness, fatigability, or incoordination significantly limit functional ability either during flare-ups or when the joint was used repeatedly over a period of time, the examiner again stated that it was not possible to determine without resorting to mere speculation, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner further stated that there was evidence of pain with passive range of motion. A January 2019 JMPR found that the June 2017 VA examiner’s response for assessing the functional impairment of the Veteran’s neck during flare-ups was inadequate. Although the examiner elicited information from the Veteran regarding his symptoms during flare-ups, the examiner stated they were unable to say without resorting to speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability during flare-ups. The JMPR indicated that the medical opinion was not compliant pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was afforded a VA examination in January 2020. The Veteran reported that his neck pain had increased in the past year with flare-ups lasting longer. He indicated he visited the chiropractor during flare-ups and the adjustment helps. The Veteran reported mild pain, but severe pain during flare-ups, cracking and popping sounds with movement, and shooting pain to the left arm. The Veteran reported increased pain on the left side during flare-ups and that flare-ups happen about once a year. The Veteran explained that the last flare up was about three and half weeks ago and lasted about a few days. He reported his neck gets stuck during flare-ups with shooting pain down the left arm and that he needs to lay down more often during flare-ups. Forward flexion was to 45 degrees, extension to 40, right lateral flexion to 45, left lateral flexion to 40, right lateral rotation to 65 and left lateral rotation to 55, with pain noted on examination for extension, left lateral flexion and left lateral rotation, that did not cause or result in functional loss. The Veteran was able to perform repetitive-use testing, with no additional loss of range of motion. The examiner stated the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted that pain significantly limited functional ability with repeated use over time, resulting in a forward flexion to 40 degrees, extension to 35, right lateral flexion to 40 degrees, left lateral flexion to 35 degrees, right lateral rotation to 60 degrees and left lateral rotation to 50 degrees. The examiner noted that the examination was not conducted during a flare-up but was consistent with the Veteran’s statements describing functional loss during flare-ups. The examiner stated that during flare-ups, pain would limit range of motion, with a forward flexion to 40 degrees, extension to 35 degrees, right lateral flexion to 35 degrees, left lateral flexion to 30 degrees, right lateral rotation to 55 degrees and left lateral rotation to 45 degrees. The Veteran’s left C5/C6 nerve roots were noted to be involved. There was no ankylosis and no other neurological abnormalities. It was noted the Veteran lost 0-1 week work time in the last twelve months. Passive range of motion was not feasible to do in a safe manner and nonweight-bearing and opposing joint measurements were not applicable. The August 2020 Board remand noted that the January 2020 VA examination failed to note the degree at which pain occurred during range of motion testing. The Veteran was afforded a VA examination in October 2020. The Veteran reported his neck had progressively worsened, with pain radiating from the left side of the neck to the left fingers and that his neck is stiff most of the time. The Veteran reported increased pain during flare-ups, which occurred three to four times a year, lasting a couple of days. He reported limited range of motion and that he cannot sit at the computer for a long time. Flexion was to 45 degrees with no pain, extension to 40 with pain at 30, right lateral flexion to 40 with pain at 30, left lateral flexion to 35 degrees with pain at 20, right lateral rotation to 55 degrees with pain at 40 and left lateral rotation to 50 degrees with pain at 30. Pain was noted on extension, right and left lateral flexion, and right and left lateral rotation that did not result in functional loss. There was no evidence of pain on weight bearing. The Veteran was able to perform repetitive use testing with no additional loss in range of motion. It was noted that pain and fatigue significantly limited functional ability with repeated use over a period of time, which would result in a range of motion of forward flexion to 40, extension to 35, right lateral flexion to 35, left lateral flexion to 30, right lateral rotation to 50, and left lateral rotation to 40. It was noted that pain and fatigue significantly limited functional ability during flare-ups, which would result in a range of motion of forward flexion to 40, extension to 35, right lateral flexion to 35, left lateral flexion to 30, right lateral rotation to 50, and left lateral rotation to 40. Reflexes were normal; sensory examination was normal on the right but decreased/absent on the left. No other neurologic abnormalities were noted. The Veteran noted that he cannot drive a bus due to his neck. There was no objective evidence of pain in nonweight-bearing. The Veteran was afforded a VA examination in December 2020. The Veteran noted that sometimes he is unable to turn his head to the left. He reported moderately severe flare-ups, that last weeks to months to a year and are alleviated by laying down on the right side and seeing a chiropractor. He indicated he cannot perform daily activities because it hurts too much. Range of motion was flexion to 35, extension to 15, right lateral flexion to 25, left lateral flexion to 30, right lateral rotation to 60 and left lateral rotation to 55. Pain was noted on all range of motion and there was evidence of pain on weight bearing. There was objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive-use testing with no additional loss of range of motion. The examiner indicated that pain would cause functional loss with repeated use over a period of time, resulting in a range of motion of forward flexion to 30 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 55 degrees and left lateral rotation to 50 degrees. The examiner indicated that pain would cause functional loss during flare-ups, resulting in a range of motion of forward flection to 30 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 55 degrees and left lateral rotation to 50 degrees. Muscle strength was normal; reflexes were normal. There was no ankylosis. It was noted that the Veteran regularly used a cane. The examiner stated that there was objective evidence of pain on passive range of motion and on nonweight-bearing. The examiner explained that active range of motion was reduced due to myofascial pain and that repetitive flexion, extension, and rotation exacerbates pain and contributes to increased muscle tightness and spasm. The examiner stated that during flares, radicular pain is present down left upper extremity, secondary to nerve irritation from muscle spasms. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the cervical spine based on incapacitating episodes. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. As noted, for the next higher rating of 40 percent based on IVDS, the evidence must indicate the Veteran had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Here, no incapacitating episodes of bedrest prescribed by a physician were reported during the October 2009, October 2012, June 2017, January 2020, October 2020, or December 2020 VA examinations. The preponderance of the evidence is also against a rating in excess of 20 percent for the Veteran’s cervical spine disability under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation due to repetitive use or flare-ups would not result in limitation of motion of forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. Even considering pain during repetitive use or flare-ups, the Veteran’s cervical spine has been limited to, at most, 30 degrees. The Veteran has undergone numerous examinations and these are the facts. The Board acknowledges the assertion that the Veteran’s symptoms during a flare-up are like ankylosis, in that he has reported at time he is unable to turn his head at all. However, even when considering the functional limitation during a flare-up, the Veteran’s symptoms do not more nearly approximate fixation of a spinal segment in neutral position. Regarding neurological impairment, the Veteran has already been granted service connection for left upper extremity peripheral neuropathy associated with his cervical spine disability (now rated as left hand carpal tunnel syndrome) and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The Veteran is competent to report certain obvious symptoms of disability, but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by the medical professionals who have examined him. The overall medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board acknowledges the Veteran’s complaints of pain on use. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). These complaints are well documented in the lay statements submitted. However, even considering the Veteran’s pain and limitation of function, there is no persuasive evidence that the Veteran’s disability warrants a rating higher than 20 percent under the applicable Diagnostic Code. The Board also recognizes the limitations that the Veteran has as a result of his service-connected disability. However, these limitations, including the Veteran’s pain and interference with daily activities have been considered in the rating assigned. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for his cervical spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to increased ratings for left knee degenerative joint disease (other than instability), currently rated as noncompensable for limitation of extension, prior to October 30, 2020, and as 20 percent disabling, thereafter, and as 10 percent disabling for limitation of flexion, prior to October 30, 2020. The Veteran seeks entitlement to increased ratings for his left knee disability. As noted previously, entitlement to a rating higher than 10 percent for instability of the left knee was denied in a May 2018 Board decision. Although the Veteran appealed the May 2018 decision to the Court, which partially vacated the decision, this issue was deemed abandoned. As such, the current appeal for entitlement to increased ratings is limited to all applicable Diagnostic Codes for the left knee, other than Diagnostic Code 5257, which rates instability. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, these changes only affect Diagnostic Code 5257, for instability, which as noted, was previously discussed in the prior Board decision, and Diagnostic Code 5262, for impairment of the tibia and fibula, which is not demonstrated by the evidence of record. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination. Knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Diagnostic Code 5256 is not applicable because there is no ankylosis of the left knee, as evidenced in the range of motion exhibited in the VA examinations. Diagnostic Code 5257 is not applicable because as previously noted, the Veteran was denied entitlement to a rating based on instability in the May 2018. Regarding Diagnostic Code 5258 and 5259, the Board notes that the Veteran has had multiple arthroscopic procedures for his left medial meniscus. He reported having a reduced ability to bend the left knee and to lift things, as well as being unable to engage in prolonged standing. However, the 2017 VA examiner reported that the Veteran’s history of chronic left knee pain was probably more directly related to degenerative arthritis changes now and not directly due to past meniscal problems. Thus, separate, compensable ratings for dislocated/symptomatic removal of semilunar cartilage under Diagnostic Codes 5258 or 5259 are not warranted. Diagnostic Codes 5262 and 5263 are not applicable as there is no evidence that the Veteran suffers from impairment of the tibia and fibula or genu recurvatum. Under Diagnostic Code 5260, to receive a rating of 10 percent, limitation of flexion of the leg must be actually or functionally limited to 45 degrees. A rating of 20 percent is warranted for limitation of flexion to 30 degrees, and a rating of 30 percent is warranted for limitation of flexion to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted when extension is actually or functionally limited to 5 degrees. A 10 percent rating is warranted when limitation of extension is to 10 degrees, a 20 percent rating is warranted for limitation to 15 degrees, a 30 percent rating warranted for limitation to 20 degrees, a 40 percent rating is warranted for limitation to 30 degrees, and a 50 percent rating for limitation to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. A June 2009 VA medical record notes that the Veteran reported having severe knee pain which worsened when he got out of his truck. He had difficulty walking across a parking lot. He had a small amount of effusion on the left. On examination, there was +1-2 effusion. There was medial knee pain and mild patellar grind. Lachman and McMurray were negative. Range of motion was full, and there was minimal pain with varus and valgus force. A July 2009 VA medical record notes that the Veteran's knee had no obvious effusion about the joint space. There was significant presence of Baker's cyst to the posterior patellar fossa area. He extended to 0 degrees bilaterally and flexed to 120 degrees. There was no obvious instability to varus/valgus or anterior/posterior drawer positioning. McMurray’s was negative. He had a bit of crepitation about the patella as he went from flexion to extension. Strength was intact throughout. There was no significant distal lower extremity edema. Another July 2009 VA medical record reflects that the Veteran had just been fitted for wraparound hinged knee braces. An additional record from this date notes that he had no obvious redness or effusion. He extended to approximately 0 degrees and flexed to approximately 120 degrees. There was no obvious instability to the knees. They were markedly tender about the medial joint line spaces. On VA examination of the Veteran’s left knee in October 2009 it was reported that he had received cortisone injections in 2009 with excellent relief of his symptoms. He reported experiencing left knee pain, swelling, giving away, and weakness, and that his knee has buckled, and he has fallen getting into and out of his truck. He reported that flare-ups occur when climbing and squatting, and on stairs. In July 2009, he had begun using a knee brace. With respect to the effect on occupational activities, it was noted that his left knee disability limits kneeling, squatting, and climbing into his truck, but he was able to perform his regular job. On examination, the Veteran's extremities were properly aligned and grossly symmetric. Muscle mass, tone, and strength were symmetric, with strength at 5/5 without fatiguing or lack of endurance after continuous resistance greater than gravity. There was no clubbing, cyanosis, or pedal edema. Joint examination was within normal limits with manipulation, with no calluses or eversion of the heels. Flexion of the left knee was to 110 without pain and was limited by obesity. Extension was to 0 degrees without pain. Medial joint line tenderness was present. No swelling or effusion was present. Ligaments and cartilage were well intact to appropriate stress vectors, except that the left medial collateral ligament (MCL) revealed grade II laxity at full extension with valgus stress. Patellar grind test was positive. A December 2009 VA medical record noted knee range of motion from 0 to 130 degrees. There was no instability on anterior, posterior, medial, and lateral stress testing. Lachman's and McMurray tests were negative. There was some developing varus deformity on the left knee. Some crepitus was noted. An April 2010 VA medical record noted that the Veteran's left knee locked up on ambulation and that there was increased laxity of the left knee. A January 2011 VA medical record noted that the Veteran had varus deformity (angulation towards the mid-line) and nearly full extension of the left knee on examination. On VA examination in October 2012, he reported that pain was usually dull and aching and 5 out of 10 in severity, and that it occurred daily for 15 minutes to three hours. It was occasionally sharp with certain movements. He took Advil over the counter and uses Bengay as needed. He reported he could not do heavy lifting due to his left knee disability. He reported that flare-ups impact the function of the knee, as excessive use or weather changes caused increase in pain. On range of motion testing, flexion was to 130 degrees with objective evidence of painful motion beginning at 110 degrees. Extension was to 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing, with flexion to 130 degrees and extension to 0 degrees. He did not have additional limitation in range of motion following repetitive-use testing. He did not have any functional loss or impairment of the knee, but he did have weakened movement and pain on movement. There was no tenderness or pain to palpation for the joint line or soft tissues. Muscle strength was 4/5 (active movement against some resistance) on flexion and was 5/5 (normal strength) on extension. Left knee anterior instability, posterior instability, and medial-lateral instability testing were normal. There was no evidence or history of recurrent patellar subluxation/dislocation. He did not have shin splints, stress fracture, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. He had had a left meniscectomy in 1993 and had no residuals. He had not had a total left knee joint replacement. He had no other residual signs and/or symptoms due to arthroscopic or other knee surgery. He had no surgical scars or other pertinent findings. It was noted that he occasionally used a neoprene sleeve. There was no X-ray evidence of patellar subluxation. The examiner found that the Veteran's left knee disabilities affected his ability to work in that he reported that he was limited with all activities which require use of his knee, but that he could do sedentary work. In June 2013, the Veteran testified that he experienced knee pain and grinding, such as with bending down or walking. He reported having difficulty going down stairs. His wife testified that the Veteran had trouble bending his knees and maneuvering. The September 2016 JMPR found that the October 2009 and October 2012 VA examinations were inadequate, as they failed to address additional loss of motion during flareups. A February 2017 VA orthopedic clinic note indicated that the Veteran desired to have a total left knee replacement because he believed that injection therapy no longer provided symptomatic improvement. However, his weight of 301 pounds was excessive and a knee replacement would not be done unless he lost weight. The February 2017 clinic note also noted that he rated his knee pain as 6/10 and that his knee pain was aggravated by increased activity and improved with rest. Left knee X-rays revealed loss of the medial joint compartment space, sclerosis and spurring on the medial tibial plateau, and degenerative changes of the patella. Examination at the time of the February 2017 clinic evaluation revealed no erythema, increased warmth, or obvious effusion but there was medial joint line tenderness and palpable crepitus with motion. There was normal left knee extension, but flexion was to only 120 degrees. Strength was good and he could arise from a seated position with mild difficulty. He ambulated with mildly antalgic gait but without an assistive device. The diagnosis was advanced left knee DJD. On a June 2017 VA examination, the Veteran reported that since his last VA rating examination in October 2012 his left knee had worsened. He took medication for pain relief and he still desired a total left knee replacement. As to flare-ups and functional impairment, including repeated use over time, the Veteran reported that his pain was 6/10 but that during flare-ups it was 10/10 and caused him to be unable to bear weight on his left knee. The pain was worse upon walking any distance, especially downhill. The condition improved with rest and staying off his feet for 30 minutes. He occasionally used a left knee brace. It was noted that he had had three (3) arthroscopic procedures on his left knee. He reported having a reduced ability to bend the left knee and to lift things, as well as being unable to engage in prolonged standing. He was a retired semi-truck driver but still worked part-time driving for a charter bus service, with flexible hours of working from zero hours per week to 20 hours per week. On physical examination left knee extension was normal to 0 degrees and flexion was to only 120 degrees; whereas, he had full flexion and full extension of the right knee (from 0 to 140 degrees). There was no pain on right knee motion but there was left knee pain in flexion and extension, including pain at rest, i.e., non-movement. The examiner reported that the Veteran’s range of motion of the left knee did not contribute to functional loss. There was pain with left knee weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was tenderness to palpation over the left medial joint line. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, and the examiner reported that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. As to whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time the examiner reported that this could not be determined without resorting to mere speculation, because there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions. Also, the examiner reported that the examination was not being conducted during a flare-up, and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. As to whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups, the examiner reported that this could not be answered without a resort to mere speculation, because there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions. On further physical examination, strength was normal in flexion and extension in each knee, and there was no reduction in muscle strength, muscle atrophy or ankylosis of either knee. The Veteran did not now have and had never had recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. It was reported that he did not now have and had never had symptoms of a meniscus (semilunar cartilage) condition. The Veteran had residual arthroscopic surgery scars, but none were noted to be symptomatic. The examiner reported that the Veteran occasionally used knee braces and regularly used a cane. The Veteran reported that he had a left knee brace he only used occasionally when he had a flare-up of left knee pain. X-rays had confirmed the presence of arthritis. The examiner reported that the left knee disorder impacted the Veteran’s ability to perform any type of occupational tasks, stating that he could not walk more than "any significant distance especially downhill," as the Veteran described it, and he had a reduced ability to bend the left knee and lift things, and was unable to do prolonged standing. He had to quit work as a welder and as a semi-truck driver due to left knee pain problems but still worked part-time as a bus driver. The examiner reported that the Veteran’s service-connected left knee chondromalacia level of severity appeared to have significantly worsened over time since last VA rating examination in October 2012, and his left knee disability had progressed to a diagnosis of advanced DJD left knee. The Veteran hoped to reduce his weight to less than 280 pounds, so that he could have a total left knee replacement. With respect to a functional assessment as to whether left knee disorder pain, weakness, fatigability, or incoordination could significantly limit functional ability either during flare-ups or when the joint was used repeatedly over a period of time, the examiner reported that it was not possible to determine without resorting to mere speculation, because there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions. In a September 2017 addendum, the June 2017 VA examiner reported, in addressing the Correia criteria, that there was evidence of pain with passive range of motion of the left knee. And, there was evidence of pain when the left knee was used in non-weight bearing. However, the examiner also reported (incorrectly) that the opposing joint, i.e., the right knee, was undamaged (whereas, service connection is in effect for right knee DJD, SP arthroplasty of the right knee and rated 30 percent disabling since June 1, 2012). As noted in the January 2019 JMPR, the June 2017 VA examiner’s response for assessing the functional impairment of the Veteran’s left knee during flare-ups is inadequate. Although the examiner elicited information from the Veteran regarding his symptoms during flare-ups, he stated he was unable to say without resorting to speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups. The JMPR indicated that this medical opinion is not compliant pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was afforded a VA examination in January 2020, pursuant to the August 2019 Board remand. He reported increased pain in the left knee in the past year, that he walks with a limp and uses a cane for balance. He reported constant pain, pain with prolonged walking, and intermittent swelling of the left knee with prolonged activity. The Veteran reported flare-ups as occurring about once a week, lasting 15-20 minutes. He indicated that he must sit down until pain subsides during a flare-up and that he takes narcotic pain medications during flares. Functional limitation was noted as pain with prolonged walking and sitting. Range of motion was zero to 115 degrees, with pain on flexion and extension noted on exam that did not cause functional loss. There was no evidence of pain on weight bearing, but there was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with no additional loss of range of motion. The examiner indicated the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. It was noted that pain significantly limited functional ability with repeated use over a period of time, with the examiner indicating the Veteran’s range of motion would be zero to 110 degrees. The examiner stated the examination was not being conducted during a flare up but was medically consistent with the Veteran’s statements describing functional loss during a flareup. It was noted that pain and fatigue significantly limit functional ability during flare-ups, and the range of motion would be limited to 5 degrees to 105 degrees. Muscle strength was normal. The examiner indicated the Veteran did not have a meniscal condition. The Veteran had an antalgic gait and used a cane. It was noted that the Veteran was a bus driver and had lost 0-1 week of work time in the past year. The Veteran reported that he had pain with sitting for a prolonged period but was able to drive for most of the time. There was no objective evidence of pain on passive range of motion, or in nonweight-bearing. The Board remanded this claim in August 2020, as the January 2020 VA examination did not note the degree at which pain occurred during range of motion measurements. The Veteran was afforded a VA examination in October 2020.The Veteran reported flare-ups occur one to two times a day after walking that were moderate to severe, and lasted minutes to hours. It was noted the Veteran cannot walk very far and cannot play golf or run. Range of motion was five degrees to 130 degrees with no pain noted on examination. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. It was noted the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. It was noted that pain and lack of endurance significantly limited functional ability with repeated use over a period of time, limiting range of motion to 5 degrees to 125 degrees. The examiner indicated the examination was not conducted during a flare-up but was consistent with the Veteran’s statements concerning functional loss during a flare-up. It was noted that pain and lack of endurance significantly limited functional ability during flare-ups, limiting range of motion to 5 degrees to 120 degrees. Muscle strength was normal. The Veteran reported losing 0 to 1 week from work in the past year, with pain on prolonged sitting and walking. There was no objective evidence of pain on passive range of motion or in nonweight-bearing. The RO then afforded the Veteran an additional VA examination in December 2020 for the right knee, which is not currently on appeal; however, the Board notes that the VA examiner recorded a range of motion for the left knee of 10 degrees to 140 degrees, with pain that did not result or cause functional loss. There was pain with weight bearing and moderate pain with palpation. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. It was noted that pain significantly limited functional ability with repeated use over time, with a range of motion of 15 degrees to 130 degrees. The Veteran denied any flareups. Muscle strength was normal. The examiner indicated the Veteran had pain with weight bearing and unsteady gait due to the left knee pain and instability. There was objective evidence of pain on passive range of motion but not on nonweight-bearing. The Veteran’s left knee is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg, as 10 percent disabling, from September 18, 2002 to October 30, 2020. The assigned Diagnostic Code 5260 for this period suggests that the left knee is rated based on compensable limitation of flexion. 38 C.F.R. § 4.71a. A review of the evidence reflects that the left knee has manifested as arthritis and been rated based on painful noncompensable limitation of motion, and that the left knee has not had compensable limitation of motion (i.e. limitation of flexion or extension) during the period on appeal, prior to October 30, 2020. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent based on limitation of flexion. Even when taking into consideration additional impairment caused by factors such as pain, weakness, and fatigability the Veteran's left knee disability is not manifested by limitation of flexion to at least 30 degrees to warrant the next higher schedular rating of 20 percent under DC 5260. The Veteran has reported that he experiences flare-ups daily. However, he was not experiencing a flare-up at the time of any of the VA rating examinations or at the time of any treatment at a VA outpatient treatment clinic. While the evidence does suggest that the left knee DJD has caused some greater functional impairment over the years, as evidenced by his slowly diminishing range of left knee flexion, it still does not more closely approximate the schedular rating criteria for the next higher rating of 20 percent, which requires flexion be limited to 30 degrees. VA’s General Counsel has held that separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September 2004). However, an evaluation under Code 5003 may not be combined with one under Code 5260 or Code 5261; Code 5003 does not specify the plane of limited motion considered, and so evaluation under either of the other limitation of motion Codes forecloses the possibility of multiple evaluations. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. As such, based on the evidence of record, the RO terminated the Veteran’s 10 percent rating based on arthritis with painful limitation of motion (Diagnostic Code 5260) on October 30, 2020, and assigned a 20 percent rating for limitation of extension (Diagnostic Code 5261), effective October 30, 2020, the date the RO states an intent to file a claim was received. Therefore, the Veteran’s limitation of extension is currently rated as noncompensable, effective June 5, 2020 and as 20 percent disabling, from October 30, 2020. As noted, a 10 percent rating is warranted when limitation of extension is to 10 degrees, a 20 percent rating is warranted for limitation to 15 degrees, and a 30 percent rating warranted for limitation to 20 degrees. Here, the Veteran did not have limitation of extension to 15 degrees until a December 2020 VA examination; however, the Board will not disturb the RO’s favorable finding that a rating of 20 percent is effective from October 30, 2020. Prior to October 30, 2020, the Veteran’s extension was not limited to more than 5 degrees, even when considering pain, fatigue, flare-ups or repetition. As such, the current noncompensable rating and 20 percent rating appropriately reflect the severity of the Veteran’s loss of extension for the period on appeal. In reaching these conclusions for Diagnostic Codes 5260 and 5261, the Board has considered any additional functional limitation due to factors such as pain, weakness, incoordination, or fatigability. See 38 C.F.R. §§ 4.40 and 4.45; Deluca v. Brown. In considering additional limitation of function, the Board acknowledges the Veteran’s complaints of knee pain. These complaints are well documented in the Veteran’s written statements and treatment records. The Board has considered the Veteran’s functional limitation of flexion and extension based on pain and finds that the current rating compensates the Veteran for his symptoms. The appeal for higher ratings for the Veteran’s left knee is denied as there is no reasonable doubt to resolve in his favor. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 3. Entitlement to a TDIU. The Veteran seeks entitlement to a TDIU. Without regard to advancing age or impairment due to nonservice-connected disabilities, if the schedular rating is less than total, a TDIU rating can be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability(ies); provided that he 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a Veteran fails to meet the percentage standards set forth in § 4.16(a) but is unemployable by reason of service-connected disabilities, the claim may be submitted for extraschedular consideration. 38 C.F.R. § 4.16 (b). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. Marginal employment shall not be considered substantially gainful employment. Consideration shall be given in all claims to the nature of employment and the reason for termination. 38 C.F.R. § 4.16. An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether a Veteran’s service-connected disabilities alone are of sufficient severity to render the Veteran unable to secure or follow a substantially gainful occupation. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, a TDIU analysis must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994); Beaty v. Brown, 6 Vet. App. 532, 534 (1994); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991). The Veteran is service connected for a right knee disability, rated as 10 percent disabling from August 2009 to April 2011, 100 percent disabling from April 2011 to June 2012, and 30 percent disabling from June 2012; posttraumatic stress disorder, rated as 30 percent disabling from June 2015; right hand carpal tunnel syndrome, rated as 30 percent disabling from July 2018; left hand carpal tunnel syndrome, rated as 30 percent disabling from January 2020; degenerative arthritis with intervertebral disc syndrome of the cervical spine, rated as 20 percent disabling from June 1993; left knee degenerative joint disease limitation of extension, rated as noncompensable from June 2020 to October 2020, and as 20 percent disabling from October 2020; left knee chondromalacia patella, rated as 10 percent disabling from July 1983 to October 2020; status post hiatal hernia repair with residual gastroesophageal reflux disease, rated as noncompensable from July 1983 to August 2002, and as 10 percent disabling from August 2002; left knee degenerative joint disease associated with left knee chondromalacia patella, rated as 10 percent disabling from September 2002 to October 2020; tinnitus, rated as 10 percent disabling from July 2006; left knee scar, rated as noncompensable from August 2009; right knee scar, rated as noncompensable from April 2011; and right knee limitation of extension, rated as noncompensable from October 2020. The Veteran’s combined rating is 70 percent, effective June 1, 2012. While none of the disabilities is assigned a single disability rating of 40 percent or higher, the Veteran’s right and left knees can be counted as a single disability for purposes of TDIU consideration as they affect the same body system. See 38 C.F.R. §§ 4.16 (a), 4.71a. These disabilities combined to a 40 percent rating or higher with the bilateral factor during the course of this appeal. See 38 C.F.R. § 4.25. The Veteran has had a combined overall rating of 70 percent or higher during the appeal period, effective June 1, 2012. As such, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16 (a) for consideration of entitlement to a total rating based on individual unemployability from June 2012. Therefore, the Veteran is eligible for an individual unemployability rating if he is unable to secure or follow a substantially gainful occupation as a result of his disabilities. Here, the Veteran meets the schedular criteria for a TDIU rating, so the remaining question is whether the Veteran’s disabilities caused him to be unable to secure or maintain a substantially gainful occupation. In the Veteran’s VA Form 21-8940, Application for Increased Compensation Based on Unemployability in November 2020, he reported that all of his service-connected disabilities prevented him from securing or following any substantially gainful occupation. He indicated he completed four years of high school and some college, with training as a truck driver. He reported that his disability had affected his full-time employment and he had last worked on a full-time basis in 2013 and became too disabled to work in October 2020. The Veteran noted that he could no longer drive Class A type vehicles due to being on pain killers and could not pass the employment drug screens. In a January 2013 counseling record narrative report, it was noted that the Veteran had a serious employment handicap and was requesting VR&E assistance for finding work that did not require standing and walking. It was noted that the Veteran’s military training and experience provided him with marketable skills in welding and pipe fitting. The Veteran reported obtaining his GED in 1974 while in service, completing some additional classes through military school and some criminal justice classes over 30 years ago, but did not earn a degree. It was noted that from 1983 to 1997 he worked as a welder, pipe fitter, and boat repairer. From 1997 to 2007, the Veteran was a truck driver. From 2007 to 2010, he worked for a trucking company, on a part time basis driving regional routes, and the Veteran then owned his own truck and authority and booked his own freights. The Veteran reported currently working 2.5 days a week and earning $500 a week and that his income met expenses. The Veteran reported no restrictions due to his tinnitus. He indicated he had restrictions with climbing stairs and ladders, limitations with standing, walking and kneeling due to his knees. The narrative report noted that although the Veteran had transferable skills as a driver, welder and pipe fitter, none of these jobs were consistent with his disabilities. It was determined that the Veteran had an employment handicap due to the fact that his service-connected disabilities contributed in substantial part to his vocational impairment and the Veteran had not overcome the effects of the impairment through further education, transferable skills or obtaining and maintaining suitable work. A February 2016 VA examination for PTSD indicated the Veteran had feelings of detachment or estrangement from others, irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects, exaggerated startle response, sleep disturbances, depressed mood, anxiety, and suspiciousness. The examiner noted that the Veteran’s symptoms cause clinically significant distress or impairment in social and occupational functioning. The Veteran was also noted to have crying spells linked to his trauma memories, excessive worry, low levels of energy and motivation, and self-critical thoughts. A June 2017 VA examination for the knees noted that the Veteran could not walk any significant distance, had reduced ability to bend his knee and lift things, and an inability to do prolonged standing. A June 2017 VA examination for the neck noted that he has a decreased ability to turn his neck and when experiencing a flare-up, he cannot do anything. A January 2020 VA examination for the knees indicated the Veteran had pain with sitting for a prolonged period but was able to drive most of the time. An October 2020 VA examination for the neck noted that the Veteran could no longer drive due to the limited range of motion of his neck with shooting pain to his hand. A December 2020 VA examination for the neck indicated the Veteran experiences reduced range of motion due to myofascial pain, and during flares radicular pain is present down the left upper extremity, secondary to nerve irritation and muscle spasms. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). Evidence indicates the Veteran stopped working on a full-time basis in 2013 and became too disabled to work on October 1, 2020. In considering the question of the Veteran’s capability of securing and following substantially gainful employment, the evidence indicates that although he was qualified to perform several types of work, to include welding, pipe fitting and driving, these are all physical jobs and he would have significant difficulty with performance of job duties due to inability to do prolonged standing, difficulty bending or lifting, a reduced range of motion of his neck, and pain in his upper extremities. Furthermore, the Board finds that if the Veteran were to obtain a less physical type of employment, his PTSD symptoms of irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects, exaggerated startle response, sleep disturbances, depressed mood, anxiety, suspiciousness and crying spells would inhibit his ability to maintain employment. Accordingly, the Board finds that the Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. Thus, entitlement to a TDIU is warranted. The Board notes that the Veteran indicated that his disabilities affected his full-time employment and he had last worked on a full-time basis in 2013; however, evidence indicates the Veteran continued to work part time until October 1, 2020. See, e.g., November 2020 VA Form 21-8940. The Veteran has not argued that his employment was marginal while working part-time, in fact, the Veteran specifically indicated that his income met expenses during the time period, and he was earning approximately $500 a week. See January 2013 counseling record narrative report. As such, the Board finds the Veteran is entitled to a TDIU, from October 1, 2020, the date he indicated he became too disabled to work. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.