Citation Nr: 21011897 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 11-03 924 DATE: March 3, 2021 ORDER A rating in excess of 10 percent for left knee, status-post anterior cruciate ligament (ACL) reconstruction, based on limitation of motion is denied. A rating of 20 percent based on left knee instability is granted. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The left knee disability results in moderate instability at worst but no limitation of extension or limitation of flexion to fewer than 120 degrees. 2. The service-connected disabilities have not rendered the Veteran unemployable. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent based on limitation of motion for the left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 2. The criteria for a 20 percent rating based on recurrent subluxation or lateral instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2006 to February 2009. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2009 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in May 2017. In an August 2017 decision, the Board granted a 10 percent rating for left knee instability. The Veteran appealed the Board’s August 2017 decision to the United States Court of Appeals for Veterans Claims (Court), which in a July 2018 order, granted the parties’ joint motions for remand (JMR), vacating the Board’s August 2017 decision denying an increased rating and remanding the claim for compliance with the terms of the JMR. In the August 2017 and again in January 2019, the Board remanded this appeal for further development. Increased Rating Left Knee Disability Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. A July 2009 VA examination record reveals the Veteran’s history of constant pain, weakness, giving way, locking, and popping in the knee. He reported a history of falls. He reported flares with physical activity but did not provide an exact frequency. He stated that the flares resulted in increased pain of 8-9/10 that lasted one to two days. Examination revealed motion from 0 to 150 degrees with pain with active flexion at 150 degrees. There was no change after repetition. The examiner diagnosed left knee pain, status-post ACL reconstruction. An October 2009 VA treatment record reveals the Veteran’s history of chronic knee pain of 4/10 and increased to 8/10. He denied swelling. Examination revealed no swelling or tenderness. There was a clicking sensation and muscle tensing in the left knee. A November 2009 VA treatment record reveals the Veteran’s history of pain, fatigue, and instability in the left knee and difficulty with activities of daily living. He reported that he walked with a cane due to pain. The reported main complaint was pain rather than instability though the Veteran reported “subtle” instability symptoms. Examination revealed full range of motion, noted from 0 to 130 degrees, without difficulty. The knee was stable to varus and valgus stress and nontender. There was normal patella excursion and tracking. The record reports diagnosis of status-post left ACL reconstruction with bone-patellar-bone autograft with ongoing pain and instability. The examiner believed the ACL reconstruction was intact, though the Veteran might have a component of rotational instability. An October 2011 VA medical record reveals the Veteran’s history of left knee symptoms. He reported a dull pain estimated as a 4/10, increased with activity. He reported that he could walk approximately a half mile before significant discomfort. He reported that sometimes it takes several days for symptoms to subside once the knee is agitated. The record reports that the Veteran had hyperextension and flexion to 135 degrees bilaterally. There was no effusion or appreciable laxity with varus or valgus stressing. There was some laxity on Lachman’s testing on the left compared to right. The diagnosis was patellofemoral knee pain and left knee symptoms with residual ligamentous instability. The Veteran was provided a brace for knee pain and prescribed physical therapy. A May 2012 VA treatment record indicates that the Veteran was seen for follow-up for knee pain. He reported inability to tolerate the hinged knee support and completion of some physical therapy which he believed was of “some” benefit. The record notes that there appeared to be some laxity on Lachman testing and drawer testing in the left knee compared to the right but no laxity with varus or valgus stress. The Veteran hyperextended both knees. The diagnosis was chronic bilateral knee pain which appeared to be patellofemoral post ACL reconstruction on the left with residual instability. The record indicates that the Veteran would receive a custom ACL brace and continue to work on strengthening. An October 2012 Social Security Administration (SSA) record reveals the Veteran’s history of recurrent pain in the left knee. He denied locking or giving out. Examination revealed no laxity of ligaments or effusion. Range of motion testing revealed motion from 0 to 130 degrees. The Veteran was able to walk normally. The examiner reported that the Veteran came to the appointment with a cane but determined the cane was not medically necessary or appropriate. The examiner diagnosed history of ACL repair with stable knee. The examiner determined the Veteran’s ability to do work-related activities such as sitting, standing, walking, lifting, and carrying and handling objects was normal. A December 2013 VA treatment record reveals the Veteran’s history of left knee pain and occasional popping. He denied weakness or swelling. He reported that any weight-bearing activity increased pain. Examination revealed joint line tenderness, mild crepitus, and no pain with varus/valgus stress. A December 2013 SSA evaluation record reports that the Veteran had motion from 0 to 140 degrees. Gait was normal and the Veteran did not use ambulatory aids. Drawer sign, McMurray, and Lachman tests were negative. The examiner determined the Veteran had normal ability to do work related physical activities such as sitting, standing, walking, lifting, and carrying and handling objects. An August 2014 VA examination record reveals the Veteran’s history of sharp daily pain that is provoked by prolonged walking and sitting with knee flexed. He reported flares with prolonged standing for which he rested and used nonsteroidal anti-inflammatories. Range of motion testing revealed motion from 0 to 120 degrees without evidence of pain. There was no change in range of motion after repetition. There was tenderness to palpation. Motor strength was full, and joint stability tests were normal. There was no evidence or history of recurrent subluxation or dislocation. The examiner reported that the Veteran had pain as a result of the left knee surgery. The record reports that the Veteran had occasional use of a brace and cane. The Veteran reported use of a cane when the knee was painful and a brace when lifting or squatting. The examiner reported that occupational functioning would be affected because heavy lifting tolerance may be decreased. A March 2016 VA treatment record reveals the Veteran’s history of daily left knee pain. He denied locking, popping, giving out, or swelling. Examination revealed joint line tenderness and pain with varus/valgus stress but no swelling. A subsequent March 2016 VA physical therapy record reveals the Veteran’s history of left knee pain and issues with running. The Veteran reported that he felt sliding and instability while running. The record indicates that the Veteran had hyperextension and flexion to 140 degrees bilaterally. Tests were negative for ligamentous or meniscal instability. Gait was non-antalgic in slippers, and the Veteran had good posture. The Veteran requested a brace as a brace had worked in the past to help him feel more stable. The assessment was left knee instability following ACL repair. The goal for physical therapy was to increase stability. July and August 2016 VA treatment record reveals the Veteran’s history of continued anterior knee pain and instability. Physical therapy records indicate that the Veteran had increased pain and instability with four-foot step-downs. He had improved stability with side-step and lunges, though some pain. The record notes that the brace did not fit the Veteran and that he would need a custom brace to prevent pressure at the tibial tuberosity. A September 2016 VA treatment record reports that gait was non-antalgic. The record indicates that the Veteran used a trial brace with a leg work-out. He had increased stability with the brace with pistol squats and no increased pain in left knee when using brace for squat. A November 2016 VA treatment record reports that the Veteran was provided a custom brace. The record indicates that the Veteran denied falls. An April 2017 VA treatment record reveals the Veteran’s history of pain for three weeks since starting a new job. He reported that he was lifting over 50 pounds regularly at work. He denied trauma or falls. He reported that the pain was increased by weight-bearing activity. He denied locking. He reported “some occasional sensation” of instability. Examination revealed steady unassisted gait. There was no swelling/redness and negative stability tests, but some medial joint line tenderness. A subsequent April 2017 VA treatment record reveals the Veteran’s history of left knee pain. He reported that he had a brace and that it was working well for weight lifting. He denied falls. Examination revealed hyperextension and flexion to 140 degrees bilaterally. Testing was negative for ligamentous or meniscal instability. Gait was non-antalgic, and the Veteran had good posture. The record indicates that the Veteran was stable to single leg stance for 10 seconds. There was bilateral instability with loss of balance with single leg squat. The record reports that the Veteran would benefit with hip/core stability exercises. The record indicates that prognosis was guarded due to “BH” and structural abnormality. A June 2017 VA treatment record reports that the Veteran had hyperextension and flexion to 140 degrees bilaterally. Gait was non-antalgic, and posture was good. Testing was negative for ligamentous or meniscal instability. The Veteran reported that he was unable to wear his brace while working. He reported that he wears a brace while weightlifting and doing squats and dead lifts. He reported that the pain goes back to baseline after repetitions while weight lifting. The record notes that the Veteran had bilateral instability with loss of balance after 10 seconds of single leg squat. A June 2017 VA examination record reveals the Veteran’s history of stabbing pain in the left knee. He reported a belief that the pain altered his gait. He reported that bending and squatting “may” produce pain and that he had pain with prolonged walking and standing or sitting more than one to two hours. He reported use of a soft knee sleeve. He reported flares. He reported that range of motion was not “his biggest issue.” Examination revealed normal range of motion with pain with flexion including after repetition. There was no evidence of pain with weight-bearing, with use without weight-bearing, or with passive range of motion. The examiner reported that pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time and flares but was unable to quantify the impact on range of motion. There was no ankylosis and normal muscle strength. Joint stability tests were normal, and there was no history of recurrent effusion, recurrent subluxation, or lateral instability. The examiner reported that the left knee disability would affect occupational functioning because the Veteran “may” get pain with repetitive bending or squatting, sitting or standing for longer than one hour, or sitting for more than one to two hours without position changes. August and October 2017 VA treatment records reveal the Veteran’s history of diffuse pain and a working diagnosis of fibromyalgia. The record reports that the Veteran had normal motion of the knees. A February 2018 VA examination record reveals the Veteran’s history that the left knee was “always” painful and “never feels right.” He reported use of a cane until 2013. He reported giving out if he is more active. He reported discomfort with walking longer than 30 minutes or standing longer than 15 minutes. He reported mild swelling unless he used a brace when more active. He denied issue with range of motion due to hyper-flexibility. Examination revealed normal range of motion with pain with flexion. There was no pain with weight-bearing, in non-weight-bearing, or with passive range of motion. There was no change in range of motion after repetition. The examiner reported that pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time and flares but was unable to quantify the impact on range of motion. Motor strength was full, and there was no ankylosis. Joint stability tests were normal, and there was no history of recurrent effusion, recurrent subluxation, or lateral instability. The record reveals occasional use of a brace when more active. The examiner reported that the left knee disability would affect occupational functioning because the Veteran “may” be limited in running, strenuous activity, climbing, squatting, and prolonged sitting/standing longer than one hour. A June 2019 VA treatment record reveals the Veteran’s history of chronic knee pain that affected his fitness goals. He explained that he had anterior left knee pain with dead lifts and squats. He denied swelling, instability, or locking. A September 2019 VA treatment record reveals the Veteran’s history of left knee pain. He reported that all activities make the pain worse. Examination revealed no effusion. There was severe and concordant pain over the medial to lateral joint line and over the distal patella. Motion was intact with very mild crepitus. There was no ligamentous laxity. Gait was fairly normal. The diagnosis was likely early patellofemoral degenerative changes/chondromalacia, symptomatic tibial screw loosening, and likely patellar tendonitis/tracking issues secondary to screw incursion. A September 2020 VA examination record reveals the Veteran’s history of left knee pain. The examiner reported that there was no evidence of left knee instability on the day of the examination. Examination revealed motion from 0 to 140 degrees with pain. There was pain with weight-bearing and passive range of motion testing but not when the knee was used in non-weight bearing. There was no change in range of motion after repetition. The examiner determined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or flares and noted that the Veteran denied flares. Motor strength was full and there was no ankylosis. Joint stability tests were normal, and there was no history of recurrent effusion, recurrent subluxation, or lateral instability. The Veteran did not use an assistive device as a normal mode of locomotion, including brace. The examiner determined the knee disability would not affect occupational functioning. The left knee, status-post ACL reconstruction, is rated under Diagnostic Code 5260 for painful motion. The Board has considered whether a higher rating is warranted based on limitation of motion. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran’s ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Flexion of the leg limited to 60 degrees warrants a noncompensable rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that the recent amendments to the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries did not alter the rating criteria for limitation of motion. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). After consideration of the record, the Board finds a higher rating is not warranted based on limitation of flexion and/or extension. The reported pain on motion is already contemplated in the rating assigned, and the record consistently reveal motion from at least 0 to 120 degrees, with flexion predominantly reaching 140 degrees. The Board acknowledges that the June 2017 and February 2018 VA examiners were unable to quantify the effect of repeated use over time and flares on functional ability though they determined pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time and flares. The 2020 VA examiner determined there would be no such limitation, however, and the Veteran has consistently indicated that his range of motion is not significantly limited due to hyper-flexibility. The Board finds the Veteran’s consistently normal to hyper-extension and near-normal flexion, including during physical therapy for the knee (which by its nature includes repeated use over time) and periods of increased symptoms and reported impairment, and the Veteran’s consistent histories of hyper-flexibility are grossly too significant to approximate the limitation of flexion to 30 degrees or limitation of extension to 15 degrees needed for a higher rating, even after consideration of repeated use over time and flares. The Board notes that the 2009 and 2014 VA examination records do not report findings related to passive range of motion or motion within and without weight-bearing and the 2017, 2018, and 2020 VA examination records do not specify passive range of motion or range of motion in and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds no prejudice results from any failure to report range of passive motion or in non-weight bearing. The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Range of motion testing performed for the knees requires standing testing, which is considered to be testing on weight bearing because the Veteran must support the weight of his body while undergoing such testing. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. Similarly, testing on weight bearing would generally produce more restrictive results than testing done without weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing or weight-bearing because such results tend to produce the “worst case scenario” of impairment and thus would tend to support the highest possible rating. The left knee instability is rated under Diagnostic Code 5257. The recent amendments did involve Diagnostic Code 5257. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, “severe” represented the highest or most extreme level of disability. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear that causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability without a prescription from a medical provider for an assistive device or bracing for ambulation. Regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. Note (2). The record indicates that the status-post ACL generally manifests by “feeling” of instability with “occasional” actual instability and occasional brace use, particularly with increased unilateral weightbearing from strenuous activities such as running or single leg squats. The record also indicates that some of the instability during unilateral exercises, such as single leg squats, are due to core and hip deficit rather than left knee impairment. This determination is consistent with the Veteran’s symmetric instability with single leg exercises, rather than solely on the left leg. After consideration of the evidence, notably the evidence of a prescription of a brace for pain and feelings of instability with lateral movement and unilateral squats, and histories of use for a brace with running and weight-lifting with improved feelings of stability and pain, the Board finds the Veteran’s condition most nearly approximates the moderate impairment contemplated by a 20 percent rating under the former criteria set forth in Diagnostic Code 5257. The Board finds a rating in excess of 20 percent is not warranted under the “former or the revised criteria. The record does not show prescription of an assistive device, including a cane or walker. Specifically, although the record reveals some use of a cane, the record is absent any medical prescription or determination that the cane was medically necessary. Additionally, the Board finds the instability is not “severe” as required for a still higher rating under the old regulations, particularly based on the generally normal clinical testing, the lack of persistent need for a brace or need for a brace with walking or other activities of daily living, and the evidence that even the sensation of instability (which the Board finds is less severe than actual instability) is at most occasional. With respect to other potentially applicable Diagnostic Codes, there is no clinical evidence of impairment of the femur, tibia, or fibula, or impairment of the semilunar cartilage. In addition, although there is a single report of locking, the Veteran thereafter consistently denied having this symptom and thus a separate rating under Diagnostic Code 5258 is not warranted. In sum, the Board finds the left knee disability warrants a 10 percent rating for limitation of motion and a 20 percent rating for instability. TDIU The Veteran reports being unable to work due to the aggregate impact of his left knee and back disabilities. See May 2017 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), a TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. Such cases are referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). • In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). 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 circumstance.” See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Service connection is in effect for restless leg syndrome with delayed sleep phase syndrome, lumbar spine disability, left knee instability, left knee pain, status-post ACL reconstruction, and left knee surgical scar. The combined rating for the Veteran’s service-connected disabilities is 60 percent and they do not meet the schedular criteria for entitlement to a TDIU set forth in 38 C.F.R. § 4.16(a). In May 2017, the Veteran filed a VA form 21-8940, reporting inability to secure or follow substantially gainful employment due to the ACL reconstruction and back. He reported that he last worked full time on April 22, 2017. The Veteran has not contended that his employment was marginal or in a protected environment, and the Board finds there is no probative evidence to that effect. The Board finds the Veteran is gainfully employed prior to April 23, 2017; the Board will consider entitlement to a TDIU from April 23, 2017. The Board finds the probative evidence does not suggest that the service-connected disabilities rendered the Veteran unable to obtain or maintain substantially gainful employment so that referral would be warranted for the period from April 23, 2017. VA examination and treatment records do not indicate impairment sufficiently significant to result in unemployability, and SSA determined the Veteran’s disabilities, which include nonservice-connected disabilities, do not render the Veteran disabled for SSA purposes. Specifically, SSA determined the Veteran retained residual functional capacity to perform light work, though he was precluded from climbing ladders, ropes, or scaffolds, in positions such as cleaner and route aide. The SSA records reveal the Veteran’s history that his psychiatric issues were the most limiting regarding occupational functioning, which is a consistent with a May 2014 statement by H.M. reporting that the Veteran’s priority status for services was determined to be “most significantly limited” due to limited interpersonal skills, limited self-direction, and limited work tolerance. The record indicates that the Veteran has maintained significant motion in the knees and is stable for ambulatory purposes and activities of daily living and the medical findings indicate that sedentary or light manual labor would not be precluded by the service-connected disabilities. In sum, the Board finds that although the service-connected disabilities result in impairment or “limitation” of occupational functioning, the probative evidence does not suggest that the service-connected disabilities have rendered the Veteran unable to obtain or maintain substantially gainful employment and thus referral to the Director, Compensation Service, for extraschedular consideration, is not warranted. The Board has considered the doctrine of reasonable doubt in reaching this decision as well but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Thus, the claim is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.