Citation Nr: 21013500 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 11-18 285 DATE: March 9, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to February 14, 2011, and to a rating in excess of 30 percent thereafter, for right knee Osgood-Schlatter’s disease with shin splints, knee strain, patellar tendonitis, chondromalacia and calcific tendonitis (right knee disability), is denied. Entitlement to a rating in excess of 20 percent prior to December 22, 2017, and to a rating in excess of 30 percent thereafter, for left knee Osgood-Schlatter’s disease with shin splints, knee strain, patellar tendonitis, chondromalacia and calcific tendonitis (left knee disability), is denied. A 20 percent rating, and no higher, for right knee instability is granted effective July 18, 2011, and no earlier. A 20 percent rating, and no higher, for left knee instability is granted effective July 18, 2011, and no earlier. An initial rating in excess of 10 percent for external otitis is denied. A separate 10 percent rating for the dizziness with balance problems and nausea associated with the external otitis is granted. A total disability rating based upon individual unemployability (TDIU) is granted effective July 18, 2011. REMANDED Entitlement to a TDIU prior to July 18, 2011, including on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Prior to February 14, 2011, the Veteran’s right knee disability was manifested by pain, stiffness and a feeling like he was losing strength, but not by ankylosis, dislocated or removed semilunar cartilage, flexion limited to 60 degrees or less, limitation of extension, genu recurvatum, or any other symptoms indicative of a marked level of disability. 2. Since February 14, 2011, the Veteran’s right knee disability has been manifested by pain, weakness, fatigability, and incoordination, but not by ankylosis, dislocated or removed semilunar cartilage, flexion limited to 60 degrees or less, extension limited to 30 degrees or worse, genu recurvatum, nonunion of the tibia and fibula, or any other symptoms indicative of a more severe level of disability. 3. Prior to December 22, 2017, the Veteran’s left knee disability was manifested by pain, stiffness and tenderness, but not by ankylosis, dislocated or removed semilunar cartilage, flexion limited to 60 degrees or less, extension limited to 20 degrees or worse, genu recurvatum, malunion of the tibia and fibula, or any other symptoms indicative of a marked level of disability. 4. Since December 22, 2017, the Veteran’s left knee disability has been manifested by pain, weakness, fatigability, and incoordination, with extension limited to 20 degrees at worst, but not by ankylosis, dislocated or removed semilunar cartilage, flexion limited to 60 degrees or worse, genu recurvatum, nonunion of the tibia and fibula, or any other symptoms indicative of a more severe level of disability. 5. Prior to July 18, 2011, the evidence does not show the Veteran’s right and left knees were manifested by buckling, giving way, falls or other indications of instability; since July 18, 2011, the Veteran has described a moderate level of buckling, giving way, and falls and a VA examiner has likened this to right and left knee instability. 6. At no time has the Veteran’s right or left knee instability been described in a way to liken it to a severe level of disability; and at no time has there been any indication of complete ligament tear, or surgical repair. 7. Competent medical evidence has established that the Veteran’s ear pain, radiating pain, ear tenderness, dryness, scaliness, itching, swelling, drainage, discharge, effusion, ear infection, dizziness, balance problems, nausea, fullness, pressure, and bleeding are all symptoms that can be attributed to the service-connected external otitis. 8. The Veteran has met the schedular criteria for a TDIU since July 18, 2011, and since that time the evidence of record supports a finding that his service-connected knee disabilities and his external otitis have rendered him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to February 14, 2011, and in excess of 30 percent since, for the service-connected right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261-5262. 2. The criteria for a rating in excess of 20 percent prior to December 22, 2017, and in excess of 30 percent since, for the service-connected left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5261. 3. The criteria for a 20 percent rating, and no higher, for right knee instability are met, effective July 18, 2011, and no earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for a 20 percent rating, and no higher, for left knee instability are met, effective July 18, 2011, and no earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 5. The criteria for an initial rating in excess of 10 percent for external otitis are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. 4.1, 4.3, 4.87, Diagnostic Code 6210. 6. The criteria for a separate 10 percent rating for the dizziness with balance problems and nausea associated with chronic otitis externa are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. 4.1, 4.3, 4.87, Diagnostic Code 6204. 7. The criteria for a TDIU are met effective July 18, 2011. 38 U.S.C. §§ 5110(a), 5107(b); 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from March 1971 to January 1975. These matters are on appeal before the Board of Veterans’ Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, the Veteran testified at a Board videoconference hearing before the undersigned. A transcript of that hearing is within the record before the Board. The Board recognizes the recent communication in the claims file in February 2021 clarifying that the Veteran has not requested and does not wish to have an additional hearing in this matter and that he has no additional evidence to submit. In August 2015 and September 2017, the Board remanded the matters on appeal for additional development. In September 2018, the Board issued a decision denying the Veteran’s claim for an initial rating in excess of 10 percent for external otitis, and remanding the right and left knee issues and the TDIU issue. The Veteran appealed the decision as to external otitis to the Court of Appeals for Veterans’ Claims (Court). In June 2019, the Court signed an Order granting a Joint Motion for Partial Remand (Joint Motion) related to the Board’s September 2018 decision. The Joint Motion did not disturb the action the Board ordered in September 2018 remand, but vacated and remanded the external otitis issue. The Board then remanded that matter in November 2019. All four of the issues on appeal are now again before the Board. With regard to the TDIU issue, the RO issued a rating decision in April 2020 awarding a TDIU effective December 22, 2017. In June 2020, the RO sent the Veteran a letter indicating the TDIU grant was a full grant of the benefit sought on appeal such that the TDIU claim was considered satisfied and has been closed. This is an incorrect conclusion on the part of the RO as the Veteran’s TDIU claim has been pending since January 2009. The decision below awards a TDIU effective July 18, 2011. The matter of whether a TDIU is warranted prior to that date will be addressed in the remand, below. Increased Rating – Right and Left Knee The Veteran was initially awarded service connection for Osgood Schlatter’s disease in the right knee by way of a November 1980 rating decision. Service connection for the left knee was denied at that time. The Veteran appealed to the Board and in September 1982, the Board issued a decision denying a compensable rating for the right knee, but awarding service connection for the left knee. A September 1982 rating decision was then issued effectuating the Board’s grant. At this time, the Osgood Schlatter’s disease for each knee was recognized as service connected and a noncompensable rating for each was assigned under Diagnostic Code 5257, which addresses the criteria for instability, although the RO noted no loss of motion or instability was present. The Veteran later filed a claim for increase for both knees, after which an August 2004 rating decision was issued. A 10 percent rating was assigned for both the right and left knee, effective May 4, 2004, the date of the claim. The ratings were assigned under Diagnostic Code 5299-5262. This rating action recognized the pain and weakness associated with the knee disabilities, as well as an unstable feeling with fatigability and lack of endurance. The rating assigned was analogous to malunion of the tibia and fibula with slight knee disability. The Veteran then filed the current claim for increase in January 2009. The May 2009 rating decision on appeal confirmed and continued the 10 percent ratings assigned for each knee. In April 2011, the RO increased the right and left knee ratings to 20 percent for each, effective January 15, 2009. The disability for each knee was then characterized as Osgood Schlatter’s disease with knee strain. The RO later, in October 2012, increased the right knee rating to 30 percent, effective February 14, 2011, and recharacterized the disability as Osgood-Schlatter’s disease with knee strain, patellar tendonitis and patellofemoral chondromalacia. In March 2018, the RO issued a rating decision increasing the left knee to 30 percent effective December 22, 2017, and recharacterizing it as Osgood-Schlatter’s disease with knee strain, patellar tendonitis, patellofemoral chondromalacia, and calcific tendonitis. In an April 2020 rating decision, the RO assigned separate 20 percent ratings for instability of the right and left knees, effective October 29, 2019. As each of these rating actions occurred during the appeal period pending since January 2009, the Board will examine the appropriate ratings for all of the knee symptoms throughout the appeal period. The underlying knee disabilities will hereinafter be referred to as right knee disability and left knee disability, respectively, with the instability in each knee referred to as such. Because the Veteran’s knee disabilities have been rating under various Diagnostic Codes, the Board will examine the evidence and consider each Diagnostic Code (DC) under 38 C.F.R. § 4.71a pertinent to the knee and leg as appropriate. Initially, the Board recognizes that, 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) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). 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.A. § 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. Diagnostic Code (DC) 5256 pertains to ankylosis of the joint. This regulation was unchanged with the February 2021 amendments. Here, the evidence does not show, and the Veteran has not suggested that either knee joint is ankylosed. Thus, a rating under DC 5256 is not warranted. DC 5257, under the old regulation, allows for a 10 percent rating with recurrent subluxation or lateral instability that is slight; a 20 percent disability rating when moderate, and a 30 percent rating when severe. The amended regulation more specifically provides criteria for both recurrent subluxation or instability and for patellar instability. With recurrent subluxation or instability, a 10 percent rating is warranted when the evidence shows 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation). A 20 percent rating is warranted when one of the following is present (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation), or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker), or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. If the evidence shows patellar instability, a 10 percent rating is warranted for 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 or a brace, cane or walker. A 20 percent rating is warranted with a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane or walker. A 30 percent rating is warranted with 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. Note (1) under the new DC 5257 criteria related to patellar instability indicates that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella and the patellar tendon; Note (2) indicates a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under DC 5258, dislocated, semilunar cartilage with frequent episodes of locking, pain and effusion into the joint is rated as 20 percent disabling. Removal of the semilunar cartilage with symptoms is rated as 10 percent disabling under DC 5259. These regulations were unchanged with the February 2021 amendments. Under DC 5260, limitation of flexion to 60 degrees or more is noncompensably rated; flexion limited to 45 degrees is rated as 10 percent disabling; flexion limited to 30 degrees is rated as 20 percent disabling; and flexion limited to 15 degrees is rated as 30 percent disabling. This regulation was unchanged with the February 2021 amendments. Under DC 5261, limitation of extension to 5 degrees or more is noncompensably rated; extension limited to 10 degrees is rated as 10 percent disabling; extension limited to 15 degrees is rated as 20 percent disabling; extension limited to 20 degrees is rated as 30 percent disabling; extension limited to 30 degrees is rated as 40 percent disabling; and extension limited to 45 degrees is rated as 50 percent disabling. This regulation was unchanged with the February 2021 amendments. DC 5262, under the old rating criteria, allows a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability; moderate knee and ankle disability is rated as 20 percent disabling; and marked knee or ankle disability is rated as 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace is rated as 40 percent disabling. The new regulation does not change the criteria for nonunion of the tibia and fibula. However, the regulation is separated into an instruction for malunion of the tibia and fibula and rating criteria for medial tibial stress syndrome (MTSS) or shin splints. For malunion of the tibia and fibula, the new regulation indicates this is to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. For MTSS, the new rating criteria indicate a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities; a 10 percent rating is warranted when the condition requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; a 20 percent rating is warranted when the condition requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; and a 30 percent rating is warranted when the condition requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Under DC 5263, genu recurvatum is rated as 10 percent disabling. This regulation was unchanged with the February 2021 amendments. 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 Veteran in this case has disability in both knees; thus, there is no 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. Shortly following the Veteran’s claim for increase, he was afforded a VA examination. The February 2009 VA examination report shows he reported pain, stiffness and soreness, worse when walking on uneven ground. The Veteran reported no instability at that time, but he did report his lower extremities feeling weak. There was also no report of active treatment for the knee disabilities at the time. The examiner recognized the stiffness in the Veteran’s knees, but noted there to be no deformity, giving way, instability, weakness, incoordination, dislocation or subluxation, locking, effusion, symptoms of inflammation or other symptoms. The examiner also confirmed that there were no flare-ups of joint disease. Physical examination revealed normal gait and no evidence of abnormal weight bearing. Subpatellar tenderness was observed. Left and right knee flexion was to 120 degrees, with normal extension to 0 degree bilaterally. The examiner confirmed that there was objective evidence of pain with active motion on both sides. The examiner also confirmed that repetitive motion testing yielded no additional limitations or additional pain. As for functional loss, the examiner confirmed the Veteran’s knee disability would have moderate effects on his ability to do chores and mild effects on his ability to shop, exercise and do general recreation. X-ray at that time revealed old Osgood-Schlatter’s bilaterally with thickening of the patellar tendon. April 2009 VA orthopedic clinic consultation notes show the Veteran reporting no locking type symptoms, but a feeling like he is losing his strength. The clinician noted the Veteran had full extension and flexion, bilaterally, with some tenderness. The plan was to treat the Veteran with physical therapy. Physical therapy notes the same day show he was fitted for knee braces. A February 2011 VA examination report shows moderate to severe palpable Osgood-Schlatter tibial tuberosity over the right knee, and mild over the left knee. Range of motion was 20 degrees to 115 degrees on the right, and 15 degrees to 80 degrees on the left. The examiner confirmed that complete extension could not be performed. Repetition three times did not further limit the left knee, but the right knee was 20 to 110 after repetition. There was no crepitus and no laxity, but moderate pain, moderate weakness and fatigue, and mild incoordination. The examiner confirmed that the Veteran had moderate painful motion, but no knee instability. The Veteran underwent another VA examination in July 2011. The Veteran continued to report bilateral knee pain, weakness and stiffness. He reported his knees haven given way and falling at least three to four times in the prior year. He was wearing braces on both knees at the time of the examination. He also reported always using a brace, although at the time of the examination he was using crutches, which he attributed to his back disability. The Board observes that a July 2011 private treatment record less than two weeks prior to the VA examination indeed shows treatment for a fall related to the Veteran’s back disability. At the VA examination, the Veteran reported weekly flare-ups of knee pain, particularly with any increase in activity level, such as walking more than fifteen to twenty minutes. The VA examiner confirmed that there was no joint ankylosis in either knee. Flexion of the right knee was limited to 125 degrees with tenderness noted at 115 degrees. Flexion of the left knee was limited to 110 degrees with tenderness at 95 degrees. Extension was limited to 10 degrees on the right, with tenderness at 20 degrees; and 15 degrees on the left, with tenderness at 25 degrees. The examiner confirmed that there was pain in the knees, but no additional weakness, excess fatigability, incoordination, lack of endurance, or additional loss of motion with repetitive use. As noted above, the Veteran reported being limited to 15 to 20 minutes of walking and having weekly flare-ups of pain; however, the examiner explained that there was no way to estimate degree of limitation at these times. Mild crepitus, snapping/popping and swelling were all recognized, bilaterally. Tenderness was also observed in both knees. The examiner did confirm that there was no laxity of the ACL, LCL or MCL in either knee, and McMurray’s testing was negative, bilaterally. The examiner referenced a July 2011 x-ray report, which confirmed mild left knee degenerative changes and old bilateral Osgood-Schlatter’s disease. The examiner summarized the Veteran’s functional limitations as including significant effects on occupation, decreased mobility, problems with lifting and carrying, and pain. Severe impact on chores and exercise was noted, with moderate impact on shopping. The examiner noted the Veteran would be prevented from doing sports, with moderate impact on recreation, traveling, and dressing, and mild interference with bathing, toileting and driving. At the Veteran’s August 2011 RO hearing, he reported having constant pain in his knees and again noted using a cane and wearing knee braces. At this time, he reported his knees locking or giving way four to five times per year. In October 2012, the Veteran was notified his right knee rating had been increased to 30 percent effective the date of the February 2011 VA examination. December 2012 VA physical therapy notes show the Veteran continuing to be treated for bilateral knee pain. He reported the pain to be aggravated by standing, walking, household chores, and prolonged sitting. The physical therapist noted the Veteran’s active range of motion as including full extension, with flexion limited to 110 degrees. February 2013 VA orthopedic consultation notes show the Veteran reporting bilateral knee pain, much worse with activity. The physician suggested x-rays of the bilateral knees showed mild patellofemoral arthritis and some calcifications in his patellar tendon. Physical examination revealed right knee extension limited to 5 to 10 degrees, with flexion to 130 degrees. The physician noted the presence of significant tenderness over the hamstring with extension. The right knee was stable to varus/valgus stress and without laxity. The examination of the left knee revealed full extension and flexion limited to 125 degrees. The left knee was also noted as stable, but with tenderness to palpation anteriorly. At his March 2013 Board hearing, the Veteran again reported having constant pain in his knees, giving way and falling due to his knees, and use of a cane for stability. A March 2013 private treatment record shows the Veteran again reporting constant pain and use of a cane to ambulate. This physician noted the Veteran had pain with all ranges of motion in both lower extremities. There was no crepitus and this physician noted the Veteran to have “good range of motion of both knees including full extension and flexion to 130 degrees.” X-rays taken at that time revealed mild left knee patellofemoral degenerative joint disease, probable right pretibial bursitis, and moderate right knee effusion. July 2015 VA physical therapy notes show the Veteran being prescribed a brace due to an unstable knee. No further details are in this report. September 2015 VA orthopedic clinic notes show the Veteran reporting feeling like his right knee gave out on him four months prior with subsequent swelling and trouble ever since with the knee locking up on him. On the day of that examination, his left lower extremity demonstrated full extension, but flexion was limited to about 100 degrees. The right knee demonstrated full extension with flexion limited to 120 degrees. Pain and tenderness were present in both knees. The clinician noted x-ray evidence showing moderate arthrosis of the right knee and mild arthrosis of the left knee. The Veteran was next provided a VA examination in November 2015. At this time, the examiner noted bilateral knee degenerative joint disease and mild medial laxity of the left knee. The Veteran again reported knee pain, discomfort and weakness and he also reported that his left knee at times gives out on him. Flare-ups were reported with prolonged weight-bearing, as well as with increased activity. He also reported cold weather and/or weather changes can cause a flare-up. He described his flare-ups as including increased pain, decreased range of motion, a slight limp, and some difficulty with prolonged weight-bearing and mobility. The examiner indicated the Veteran had undergone MRI of the knees in October 2015, which revealed tricompartmental osteoarthrosis, but no findings to suggest a meniscal tear. At the time of this examination, right and left knee range of motion was the same, with full extension and flexion limited to 120 degrees, bilaterally. The examiner confirmed the Veteran’s knee pain was present with weight-bearing and there was evidence of localized tenderness and pain on palpation. Crepitus was also observed in both knees. Following repetitive testing, extension remained the same, bilaterally, but flexion was further limited to 115 degrees, bilaterally. The examiner confirmed it was the Veteran’s knee pain that caused this further limitation. The examiner explained that because the Veteran was not being seen during flare-up, or following repeated use over a period of time, estimations related to further limitations of motion in those circumstances was not possible. Joint stability testing was normal on the right side. However, the left knee was noted to show medial instability on testing. No further physical findings were present. The examiner did confirm there to be no ankylosis of the joint. May 2016 VA orthopedic clinic notes show the Veteran discussing surgical options. The physician noted the Veteran’s arthritic pain could be corrected by surgery, but not any Osgood-Schlatter disease related pain. At the time of this visit, the Veteran’s bilateral knees demonstrated mild effusions. The physician noted the Veteran had nearly full range of motion in both knees, but with a five to ten degree flexion contracture on the left. The physician noted the Veteran’s knees were stable to varus and valgus stress at this time. October 2016 private chiropractic notes show similar reports of pain. Flexion in both knees was to 130 degrees, and extension was limited to between 10 and 15 degrees. Pain and stiffness were also noted bilaterally. The same clinician recorded the same ranges of motion and symptoms in November 2016. September 2017 VA physical therapy notes show the Veteran reporting difficulty with stairs, especially during flare-ups of knee pain. He continued to use a cane all the time. Private clinical notes in September 2017 consistently show reports of pain in both knees, particularly with increased movement, applied pressure and prolonged sitting. The Veteran was again afforded a VA examination in December 2017. The Veteran reported increasing bilateral knee pain, and also reported that his left knee has given out several times causing him to fall, and his right knee buckles if he puts weight on it. At this time, there were no reports of flare-ups of symptoms. He did report being unable to sit or stand for long periods of time. Right knee extension was limited to 25 degrees, and flexion to 100 degrees. Left knee extension was limited to 20 degrees, and flexion to 110 degrees. The examiner confirmed the limitation and an altered gait were due to the bilateral knee pain. There was also evidence of pain with weight-bearing, and crepitus, bilaterally. Following repetitive testing, the right and left knee extension was unchanged, but the flexion was further limited to 95 degrees, bilaterally. The examiner noted specifically that there is objective evidence of pain on passive range of motion testing, but no objective evidence of pain when the joint is used in non-weight-bearing. The examiner made note that both knees were impaired, so comparison to an opposing undamaged joint was not possible. Muscle strength testing was reduced to active movement against some resistance (4/5), bilaterally, but there was no muscle atrophy. The examiner confirmed there was no joint ankylosis, and at this time joint stability testing was normal, bilaterally. The examiner did note that the Veteran’s gait was slowed due to a walker, and the Veteran wore a left knee brace during the examination. Also in December 2017 this examiner confirmed in a separate report that range of motion and functional impairment during a flare-up or with repeated use over time is not possible without speculation without directly observing the flare or aggravation. The RO subsequently awarded the Veteran a 30 percent evaluation for the left knee, effective the date of this examination. Most recently, the Veteran was examined in October 2019. Consistent with the prior reports, the Veteran indicated he experiences decreased range of motion, pain, stiffness, a burning around his kneecaps, bilaterally, and some weakness. He also reported falling at times when his knees give out. The Veteran remained without any surgical history to his knees, and reported ongoing treatment with medication and physical therapy, as well as use of knee braces and a walker. At this time, the Veteran reported flare-ups of pain, stiffness, weakness and instability, and indicated it interferes with walking, bathing, sitting, using the toilet, climbing stairs, sleeping and driving. Range of motion testing at the time of this examination revealed full extension in both knees, with flexion limited to 90 degrees on the right and 70 degrees on the left. Repetitive testing was conducted, and the examiner confirmed there was no additional lost motion after the repetitive testing. Pain was indicated with all motion and the examiner recognized the objective evidence of localized tenderness or pain on palpation. Pain was also present with weight-bearing, but there was no crepitus on either side. Pain was also recognized as present with non-weight-bearing. The examiner also confirmed that it was pain, fatigue, weakness, lack of endurance and incoordination that caused the listed limitations in flexion. The examiner also noted that the examination was not being conducted during a flare-up in either knee, but the symptoms exhibited were consistent with the Veteran’s statements related to functional loss during flare-up. The examiner estimated the limitations in motion, flexion in particular, would be the same during flare-up as was demonstrated at the examination. The examiner confirmed that there was no ankylosis of either knee joint. Joint stability testing revealed no instability in the joint, but the examiner, presumably based upon the Veteran’s reports of his symptoms, recognized the Veteran as having moderate lateral instability in each knee. Following this examination, the RO issued a rating action awarding separate 20 percent ratings for right and left knee instability, effective the date of the October 2019 examination. There is no more recent evidence of record. The Board has considered all DCs pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Again, the Veteran is rated at 20 percent prior to February 14, 2011, and 30 percent since, for his right knee. The rating code sheet indicates his rating is assigned under DC 5261-5262. He is also rated at 20 percent for his right knee instability under DC 5257. The evidence summarized above does not show ankylosis (DC 5256), dislocated or removed semilunar cartilage (DC 5258 or 5259), or genu recurvatum (DC 5263). These, therefore, are not applicable. As for the Veteran’s limitation of flexion (DC 5260), while there is limitation shown, at no time has the flexion been limited to 45 degrees or worse. Thus, there is no basis for a compensable rating for the right knee under DC 5260. As for limitation of extension (DC 5261), at worst, the Veteran’s extension was limited to 20 degrees as early as February 2011, which corresponds to the 30 percent evaluation already assigned. The Board recognizes the Veteran’s rating is assigned using DC 5262 to afford the Veteran a greater benefit for his moderate level of disability prior to February 24, 2011. The evidence prior to February 14, 2011 indeed does not show the more serious disability level present. The pain and limited function are compensated for within the ratings assigned pursuant to the criteria under DC 5262, and the range of motion limitation DCs are not more favorable for that period. The Board, therefore, finds the criteria for a rating in excess of 20 percent prior to February 14, 2011, or for a rating in excess of 30 percent since that time, for the underlying right knee disability are not met. As for the right knee instability, the Board recognizes the Veteran was fitted for knee braces at a physical therapy appointment in April 2009, but there was no indication of actual instability prior to the July 2011 VA examination. However, at the time of that examination, he reported his knees giving way and falls occurring several times per year. He also reported falling due to his knees at the Board hearing. By July 2015, he was being prescribed braces for unstable knees. The examinations since that time show descriptions of giving way, buckling and falling. At the most recent VA examination, the examiner noted the lack of instability in the joint shown in testing, but recognized the Veteran’s report of instability and buckling. The RO allowed for a 20 percent rating as of the date of the December 2019 examination. However, reading the record in the light most favorable to the Veteran, the Board finds the indication of instability in the knee based upon the Veteran’s lay statements is found as early as the July 18, 2011 VA examination. The 20 percent rating for moderate right knee instability should be assigned as of that date, but no earlier. There is no evidence suggesting severe instability; thus, a rating in excess of 20 percent for right knee instability is not warranted at any time. Moreover, for an increase under the new criteria, a rating in excess of 20 percent for recurrent subluxation or instability requires a complete ligament tear, which is not shown here; and a rating in excess of 20 percent for patellar instability requires the instability to be present after surgical repair, which is also not shown here. Thus, there is also no basis for increase for the instability in the right knee under the new criteria. For the left knee the Veteran is rated as 20 percent disabled prior to December 22, 2017, under DC 5010-5261. This suggests the Veteran is rated for his arthritis (DC 5010) with the compensation assigned for his limited left knee extension (DC 5261). He is also rated at 20 percent for his left knee instability under DC 5257 effective October 29, 2019. As with the right knee, the evidence summarized above does not show ankylosis (DC 5256), dislocated or removed semilunar cartilage (DC 5258 or 5259), or genu recurvatum (DC 5263). These, therefore, are also not applicable to the left knee. As for the Veteran’s limitation of flexion (DC 5260), while there is limitation shown, at no time has the flexion been limited to 45 degrees or worse. Thus, there is no basis for a compensable rating for the right knee under DC 5260. As for limitation of extension (DC 5261), at worst, the Veteran’s left knee extension was limited to 10 to 15 degrees at the time of the October 2016 outpatient treatment and limited to 20 degrees at the time of the December 2017 VA examination. At no time prior to December 2017 was the Veteran’s extension limited to 20 degrees or worse. Thus, there is no basis for a rating in excess of 20 percent during that time period. Further, at no time since, has the extension been limited to 30 degrees or worse. Thus, there is no basis for a rating in excess of 30 percent since December 2017. As noted above, the right knee is rated analogous to DC 5262; however, the left knee is adequately compensated utilizing DC 5261. The evidence does not suggest the Veteran has nonunion of the tibia and fibula; thus, a higher rating under that criteria is not warranted. The Board, therefore, finds the criteria for a rating in excess of 20 percent prior to December 22, 2017, or for a rating in excess of 30 percent since that time, for the underlying left knee disability are not met. As for the left knee instability, as with the right knee, the Board recognizes that there was no indication of actual instability prior to the July 2011 VA examination. However, at the time of that examination, he reported his knees giving way and falls occurring several times per years. He also reported falling due to his knees at the Board hearing. By July 2015, he was being prescribed braces for unstable knees. The examinations since that time show descriptions of giving way, buckling and falling. At the most recent VA examination, the examiner noted the lack of instability in the joint shown in testing, but recognized the Veteran’s report of instability and buckling. The RO allowed for a 20 percent rating as of the date of the December 2019 examination. However, reading the record in the light most favorable to the Veteran, the Board finds the indication of instability in the left knee based upon the Veteran’s lay statements is found as early as the July 18, 2011 VA examination. The 20 percent rating for moderate left knee instability should be assigned as of that date, but no earlier. There is no evidence suggesting severe instability; thus, a rating in excess of 20 percent for left knee instability is not warranted at any time. Further, as with the right knee, there is no showing of left knee complete ligament tear, or surgical repair; thus, there is also no basis for increase for the instability in the right knee under the new criteria. As to the claims for ratings in excess of any assigned by the RO or by way of this decision, the Board has duly considered the benefit-of-the-doubt doctrine. However, to that extent, the preponderance of the evidence is against the Veteran’s claims, so that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Increased Rating – Chronic External Otitis The Veteran was initially awarded service connection for chronic external otitis by way of a May 2009 rating decision. A noncompensable rating was assigned. The Veteran appealed the initial rating assigned. An April 2011 rating decision then increased the initial evaluation to 10 percent. As noted above, the Board denied the Veteran’s claim for a rating in excess of 10 percent for the service-connected chronic external otitis in September 2018. The June 2019 Joint Motion found the Board erred by not considering the history of bleeding in the Veteran’s ears as reported by him at his March 2013 Board hearing. The matter now again before the Board is whether an initial rating in excess of 10 percent is warranted. Chronic otitis externa is rated under 38 C.F.R. 4.87, DC 6210, which provides for a 10 percent rating when there is swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. As noted above, this is the rating assigned. The Veteran, however, claims additional symptoms attributable to the disability warrant a higher or separate rating to be assigned. The Board has, therefore, reviewed the record to assess the symptoms attributable to the service connected chronic otitis externa. A VA treatment record from August 2008 indicated the Veteran had pain, swelling, and drainage from his left ear. The Veteran has undergone several VA examinations in connection with his claim. At a February 2009 examination, he was diagnosed with otitis externa. The examiner noted no history of tinnitus, ear pain, vertigo or dizziness, hearing loss, ear discharge, ear pruritis, or balance or gait problems. The Veteran did have a history of ear infections, reporting approximately six infections per year, with current infections observed bilaterally. Upon examination, there was no deformity of the auricle and no aural polyps. Both ear canals were dry with edema. No scaliness or discharge were observed. The tympanic membrane and mastoids were normal bilaterally. There were no complications of ear disease or secondary conditions, evidence of middle or inner ear infection, or staggering gait or imbalance noted. Hearing loss was observed. There was no diagnosis of peripheral vestibular disorder. At a March 2009 VA examination, the Veteran reported bilateral ear pain on a daily basis which radiated to his lower jaw, teeth, and frontal sinus region. He also reported dizzy sensations that made him lightheaded and queasy. It was noted that his blood pressure was followed by clinicians. Examination of the ears revealed normal canal structure on the right with cerumen of normal quantity. On the left, there was cerumen impaction adjacent to the tympanic membrane. The canal was otherwise without abnormality, but was tender to touch. It was noted that the Veteran wore a hearing aid in his left ear. He was diagnosed with otitis externa, possible temporomandibular joint (TMJ) pain, and possible chronic rhinosinusitis. The examiner suspected that the Veteran’s ear pain originated in the TMJ. In a follow-up, he later ruled out chronic rhinosinusitis or otomastoiditis diagnoses and found it less likely than not that he had chronic sinus disease or an otologic source for his ear pain. A VA audiological examination was also conducted in March 2009 which found that the Veteran’s hearing loss was not related to service, as his discharge audiogram had normal results subsequent to any in-service noise exposure, which verified that his hearing had recovered from any acoustic trauma without permanent hearing loss. The Veteran did not report experiencing tinnitus. In April 2009, the Veteran had mild inflammation of the external otitis. Upon examination, his external canals were dry, devoid of cerumen and not macerated. His TMJs were non-tender, but he did have slight tenderness on manipulation and examination of the ears, greater on the left than on the right. In August 2009, ear discharge was observed and otitis with effusion was diagnosed. In April 2010, the Veteran reported a perceived decrease in hearing acuity over the past year or two. His ear canals contained moderate cerumen debris which was removed. He had a minimal, small fungal component on each tympanic membrane from the moist debris. The tympanic membranes were intact and normal bilaterally and no fluids were observed. He was diagnosed with mild fungal otitis externa bilaterally. An August 2010 VA treatment record indicated that the Veteran had bilateral otitis externa, resolved. His ear canals and tympanic membranes were completely normal upon examination, with no irritation or moistness in either canal. The Veteran sought treatment in January 2011 for severe pain in the left ear with foul-smelling discharge. Upon examination, the left ear canal was red and painful. Bilaterally, there was a minimal fungal component on each tympanic membrane from the moist debris and wax. The tympanic membranes were intact and normal with no fluids observed. In February 2011, the Veteran was diagnosed with a left ear infection and resolved otitis externa. He reported pain in his jaw and neck spasms. The left ear canal was extremely tender but free of debris with normal tympanic membrane. He had discomfort with manipulation of the external ear. There was no pre- or post-auricular redness, pain or swelling, but tenderness to palpation. The right ear canal had moderate cerumen debris, which was removed, but was otherwise normal. The tympanic membrane was normal. At a June 2011 VA appointment, the Veteran’s right ear canal had cerumen debris removed. The canal and tympanic membrane were normal. His left ear canal was free of debris. He had tenderness on the anterior wall consistent with his TMJ inflammation. At an August 2011 Decision Review Officer hearing, the Veteran stated that he had ear infections, pain, discomfort, and drainage, and had hearing problems. In November 2011, the Veteran was diagnosed with right otitis externa media. His tympanic membrane and external auditory canal were clear. The Veteran was diagnosed with bilateral otalgia in February 2012, deemed to be most likely resulting from his TMJs. Hearing loss was also noted. In November 2012, he was diagnosed with left ear otalgia, most likely from TMJ, and bilateral hearing loss. At a March 2013 VA appointment, the Veteran’s external auditory canals were a little red, but his tympanic membranes were intact. He was diagnosed with chronic external otitis. At the March 2013 hearing, the Veteran stated that he had numerous ear infections, and experienced symptoms of pain, drainage, irritation, and bleeding. He stated that the pain often radiated to his neck and that his ears were more painful when exposed to cold air. In June 2013, the Veteran reported itching in his ears with pain radiating to his teeth. In September 2013, examination of his ears found very little debris in the external auditory canals and intact tympanic membranes. The Veteran reported that he was quite happy with his hearing capabilities at the time. In December 2013, the Veteran again reported itching in his ears. Examination revealed that both ears had erythema and edema of the canals, with tenderness on the left. The tympanic membranes were normal bilaterally and the external ears were otherwise normal. He was diagnosed with chronic external otitis. At a December 2015 VA examination, the Veteran reported experiencing some pruritus in the ears, as well as intermittent drainage or otorrhea, for which he was prescribed antibiotic drops and medications. Upon examination, there were no findings of vestibular conditions. His bilateral external auditory canals were inflamed, dry and scaly, itching, and requiring frequent and prolonged treatment of topical otic drops. The tympanic membrane was normal, and gait was normal. The Veteran sought treatment from a private provider in December 2015 where he reported ear fullness, balance problems, dizziness, tinnitus, headaches, jaw pain, and nasal congestion. Upon examination, his external canals were patent without occlusion, inflammation, or drainage, and both tympanic membranes were dull, red, and had fluid behind them. He was diagnosed with bilateral chronic serous otitis media, other otitis externa, Eustachian tube disorder, vestibular neuronitis, and tinnitus. A February 2016 VA appointment found unremarkable bilateral auricles without concerning lesions, pre-auricular pits or tags, or tenderness or fluctuance of the mastoids. Both canals were patent with minimal cerumen. The left tympanic membrane was translucent with dark serous effusion and retraction, while the right tympanic membrane was slightly opacified without retraction or effusion. The Veteran reported pain in his left ear and that he had had drainage, but it had stopped. Private medical records from February 2016 noted reports of ear plugging, fullness and pressure, and hearing loss on the left side worse than the right. He was diagnosed with a bilateral Eustachian tube disorder, chronic serous otitis media, tinnitus, and TMJ disorder. In March 2016, a tympanostomy tube was paced in the Veteran’s left ear. At a follow-up appointment in May, he had little to no ear drainage and mild symptoms of ear fullness, tinnitus, and dizziness. He was diagnosed with bilateral Eustachian tube disorder, chronic serous otitis media, tinnitus, and vestibular neuronitis. In June 2016, his external canals were patent without occlusion, inflammation or drainage. At a July 2016 VA appointment, the Veteran had less drainage, fullness, and pain in his left ear, but reported having imbalance issues. In August 2016, he had yellow otorrhea with severe otalgia. At a private follow-up in September 2016, the Veteran was diagnosed with allergic rhinitis and recurrent acute otitis media. He reported consistent drainage since the placement of the tube in the left ear, and symptoms of tinnitus, dizziness with nausea, difficulty with balance, Eustachian tube dysfunction, and TMJ. Upon examination, the external ears were normal, the external auditory canals were clear, and there was significant white drainage from the tympanostomy tube in the left ear. Subsequently in September 2016, the tympanostomy tube was removed from the Veteran’s left ear. His tympanic membranes were normal without perforation or fluid, ear canals were healthy, with mild cerumen and crusting. In January 2017, the Veteran experienced ear pain without drainage. In August 2017, he reported recurrent ear infections and tinnitus to VA providers. Tympanosclerosis was observed in the left ear, with an otherwise normal examination. He continues to be prescribed antibiotic drops and medications. At a December 2017 VA examination, the Veteran was diagnosed with chronic otitis externa, acute otitis media, and Eustachian tube dysfunction. He endorsed symptoms of tinnitus, dizziness, nausea, balance problems, difficulty hearing, sensitivity to noise, yellow and clear discharge, pain in the bilateral ears, and jaw pain. Upon examination, the examiner observed swelling, dryness and scaliness, serous discharge, itching, and effusion of the external ear canal, requiring chronic treatment with otic antifungal and antimicrobial medication. There were no vestibular conditions diagnosed. The examiner noted that acute otitis media and Eustachian tube dysfunction were new diagnoses. She determined that these conditions may have resulted from the bacteria in the ear that caused his otitis externa if there was a perforation of the tympanic membrane, otherwise they were separate conditions from his otitis externa. Observation of the tympanic membrane revealed that it was normal, with no evidence of perforation. Because the examiner noted hearing impairment and tinnitus upon examination, a hearing loss and tinnitus VA examination was also conducted. The Veteran did have sensorineural hearing loss, but it was not found to be connected to service due to normal audiological findings at discharge. The examiner determined that the Veteran’s reported tinnitus was at least as likely as not a symptom associated with his hearing loss, as it was a known symptom associated with hearing loss. The Board attaches significant probative value to the VA examiners’ opinions, as they are well-reasoned, detailed, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history. See Prejean v. West, 13 Vet. App. at 448-9. Further, there are no medical opinions of record disputing the examiners’ conclusions. In the November 2019 Board remand, the Board noted the Veteran’s history of symptoms as including ear pain, radiating pain, jaw pain, ear tenderness, dryness, scaliness, itching, swelling, drainage, discharge, effusion, redness, ear infection, dizziness, balance problems, nausea, fullness and pressure, hearing loss and tinnitus, as well as the bleeding. An opinion was required to address which symptoms can be attributed to the service-connected external otitis and also to determine whether referral for extraschedular consideration was warranted. A subsequent opinion in March 2020 opined that the Veteran’s otitis media, TMJ, Eustachian tube disorder, hearing loss and tinnitus are related to the prior, non-service-connected otitis media, and not related to the service connected bilateral otitis external. In a more detailed separate March 2020 report, the examiner indicated the Veteran’s current symptoms of ear pain, radiating pain, ear tenderness, dryness, scaliness, itching, swelling, drainage, discharge, effusion, ear infection, dizziness, balance problems, nausea, fullness, pressure, and bleeding are all symptoms that can be attributed to the service-connected external otitis. The examiner found the jaw pain to be due to non-service-connected TMJ, and also found hearing loss and tinnitus to be unrelated to external otitis. The Board notes that the rating criteria for external otitis contemplates swelling, dry and scaly or serous discharge, and itching. 38 C.F.R. § 4.87, DC 6210. The Board finds that most of the Veteran’s various symptoms are contemplated by DC 6210. Active ear infection (otitis) is universally known to produce pain and tenderness; infection is synonymous with otitis; pressure and fullness are contemplated by the compensation for swelling; and bleeding and effusion are contemplated by the compensation for serous discharge. These symptoms are contemplated by the rating schedule and adequately compensated by the rating assigned under DC 6210. However, the Board recognizes the Veteran’s records also indicate the presence of dizziness, balance problems and occasionally reported nausea. These symptoms are not reasonably contemplated by DC 6210. Under 38 C.F.R. § 4.87, DC 6204, occasional dizziness warrants a 10 percent rating when analogized with peripheral vascular disorders. A higher, 30 percent rating, is warranted under DC 6204 if there is a showing of dizziness and occasional staggering. The evidence in this case shows the Veteran reporting balance problems and dizziness with occasional reports of associated nausea, but no indication of occasional staggering. As the dizziness can reasonably be assumed to be associated with the nausea and balance problems occasionally reported, the Board finds these symptoms would warrant a single separate 10 percent rating. The Board, therefore, finds the Veteran’s reported dizziness and balance problems with occasional nausea that have been attributed to his service-connected otitis externa can be reasonably contemplated and compensated by a separate 10 percent rating under DC 6204. Because the symptoms shown throughout the record are reasonably contemplated by the rating criteria, the Board finds there is no need to remand this to order extraschedular consideration. Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (December 30, 2020). Accordingly, an initial rating in excess of 10 percent for the underlying external otitis is not established; however, a separate 10 percent rating for the associated dizziness with balance problems and nausea is warranted. As to the claims for ratings in excess of any assigned by the RO or by way of this decision, the Board has duly considered the benefit-of-the-doubt doctrine. However, to that extent, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). By way of the decision, above, the Veteran satisfies the criteria for consideration of TDIU on a schedular basis from July 18, 2011, forward. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The Veteran contends that his service-connected disabilities have made him unable to obtain and keep substantially gainful employment throughout this appeal period. Again, the Veteran is at this time only meeting the schedular requirements for a TDIU from July 18, 2011 to the present. The matter of whether a TDIU is warranted on an extraschedular basis prior to that date is discussed in the remand, below. In November 2020, a vocational assessment was received and associated with the claims file. The clinician completing the assessment reviewed the claims file and summarized the Veteran’s history of symptoms associated with his service-connected disabilities. The clinician concluded that the Veteran’s symptoms associated with his bilateral knee disability and his external otitis have led to him being unable to secure and follow substantially gainful employment since at least January 2009. The clinician recognized the Veteran as working some since that time, but that it was not at an income level above the federal poverty threshold. The clinician further found the Veteran does not have the skill set to transfer to another occupation. The Board finds the limitations shown within the various examination reports and clinical records within the file, as well as the reasoning described by the examiner, adequately show that the Veteran is unable to obtain and maintain substantially gainful employment. As the evidence reasonably shows that the Veteran is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities, and the Veteran meets the schedular requirement for a TDIU as of July 18, 2011, the assignment of TDIU benefits is warranted effective July 18, 2011. To this extent, the appeal is granted. REASONS FOR REMAND TDIU Prior to July 18, 2011 By way of the decision, above, the Veteran is assigned a TDIU effective July 18, 2011. However, this claim has been pending since January 2009. Prior to July 18, 2011, the Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). However, in November 2020, a vocational assessment was received and associated with the claims file. The clinician completing the assessment reviewed the claims file and summarized the Veteran’s history of symptoms associated with his service-connected disabilities. The clinician concluded that the Veteran’s symptoms associated with his bilateral knee disability and his external otitis have led to him being unable to secure and follow substantially gainful employment since at least January 2009. The clinician recognized the Veteran as working some since that time, but that it was not at an income level above the federal poverty threshold. The clinician further found the Veteran does not have the skill set to transfer to another occupation. Based upon these conclusions found in the record, the Veteran’s claim for TDIU prior to July 18, 2011, is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. This matter is REMANDED for the following action: 1. Refer the Veteran’s claim for TDIU prior to July 18, 2011, to VA’s Director of Compensation Service for extraschedular consideration. The November 2020 vocational assessment and any other relevant evidence must be considered. 2. After completing the above action, to include any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the Veteran’s claim should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.