Citation Nr: 21014219 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-43 543 DATE: March 11, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for service-connected thoracic spine chronic strain and post-operative status (previously rated as healed T4 and T5 fractures) is denied. Entitlement to an evaluation in excess of 10 percent for status post left knee replacement (previously rated as left knee strain and patellofemoral syndrome and extra articular exostosis) prior to April 19, 2017 is denied. Entitlement to a 60 percent evaluation, but no higher for status post left knee replacement (previously rated as left knee strain and patellofemoral syndrome and extra articular exostosis) beginning June 1, 2018 is granted. Entitlement to an evaluation in excess of 60 percent for status post left knee replacement (previously rated as left knee strain and patellofemoral syndrome and extra articular exostosis) beginning January 28, 2020 is denied. Entitlement to an evaluation in excess of 10 percent for status post right total knee replacement and revision (previously rated as right knee patellofemoral syndrome) prior to February 22, 2017 is denied. Entitlement to a 60 percent evaluation, but no higher for status post right total knee replacement and revision (previously rated as right knee patellofemoral syndrome) beginning April 1, 2018 is granted. Entitlement to a 60 percent evaluation, but no higher for status post right total knee replacement and revision (previously rated as right knee patellofemoral syndrome) beginning October 1, 2018 is granted. Entitlement to a 20 percent evaluation, but no higher for sciatic nerve, left lower extremity radiculopathy prior to January 28, 2020 is granted Entitlement to an evaluation in excess of 20 percent for sciatic nerve, left lower extremity radiculopathy beginning January 28, 2020 is denied. Entitlement to an initial compensable 20 percent evaluation, but no higher for sciatic nerve, right lower extremity radiculopathy prior to January 28, 2020 is granted. Entitlement to an evaluation in excess of 20 percent for sciatic nerve, right lower extremity radiculopathy beginning January 28, 2020 is denied. Entitlement to an initial compensable 20 percent evaluation, but no higher for femoral nerve, right lower extremity radiculopathy prior to January 28, 2020 is granted. Entitlement to an evaluation in excess of 20 percent for femoral nerve, right lower extremity radiculopathy beginning January 28, 2020 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 1, 2014 is denied. Entitlement to a TDIU beginning May 1, 2014 is granted. FINDINGS OF FACT 1. The Veteran’s thoracic spine chronic strain and post-operative status (thoracic spine disability) has not been characterized by forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. 2. The Veteran’s status post left knee replacement (left knee disability) was not manifested by flexion limited to 30 degrees prior to April 19, 2017. 3. The Veteran underwent left knee replacement in April 2017 and his left knee disability was manifested by symptoms of chronic severe pain and weakness beginning June 1, 2018. 4. The Veteran’s left knee replacement manifested with symptoms of chronic severe pain and weakness beginning January 28, 2020. 5. The Veteran’s status post right total knee replacement and revision (right knee disability) was not manifested by flexion limited to 30 degrees prior to February 22, 2017. 6. The Veteran underwent right knee replacement in February 22, 2017 and revision in August 23, 2018 and his right knee disability was manifested by symptoms of chronic severe pain and weakness for the periods beginning June 1, 2018 and October 1, 2018. 7. The Veteran’s left lower extremity radiculopathy involving the sciatic nerve is characterized by moderate paralysis, but not moderately severe, severe, or complete paralysis for the period prior to January 28, 2020. 8. The Veteran’s left lower extremity radiculopathy involving the sciatic nerve is not characterized by moderately severe, severe, or complete paralysis for the period beginning January 28, 2020. 9. The Veteran’s right lower extremity radiculopathy involving the sciatic nerve is characterized by moderate paralysis, but not moderately severe, severe, or complete paralysis for the period prior to January 28, 2020. 10. The Veteran’s right lower extremity radiculopathy involving the sciatic nerve is not characterized by moderately severe, severe, or complete paralysis for the period beginning January 28, 2020. 11. The Veteran’s right lower extremity radiculopathy involving the femoral nerve is characterized by moderate paralysis, but not severe paralysis or complete paralysis for the period prior to January 28, 2020. 12. The Veteran’s right lower extremity radiculopathy involving the femoral nerve is not characterized by severe paralysis or complete paralysis for the period beginning January 28, 2020. 13. The Veteran’s service-connected disabilities were not of such severity so as to preclude substantially gainful employment prior May 1, 2014. 14. The Veteran’s service-connected disabilities were of such severity so as to preclude substantially gainful employment beginning May 1, 2014. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for thoracic spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for a rating in excess of 10 percent for left knee disability prior to April 19, 2107 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5620, 5055. 3. The criteria for a 60 percent rating, but not higher for left knee disability beginning June 1, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5620, 5055. 4. The criteria for a rating in excess of 60 percent for left knee disability beginning January 28, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5620, 5055. 5. The criteria for a rating in excess of 10 percent for right knee disability prior to February 22, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5620, 5055. 6. The criteria for a 60 percent rating, but no higher for right knee disability beginning April 1, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5620, 5055. 7. The criteria for a rating in excess of 60 percent for right knee disability beginning October 1, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5620, 5055. 8. The criteria for a 20 percent rating, but no higher for sciatic nerve left lower extremity radiculopathy prior to January 28, 2020 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520. 9. The criteria for a rating in excess of 20 percent for sciatic nerve left lower extremity radiculopathy beginning January 28, 2020 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520. 10. The criteria for a 20 percent rating, but no higher for sciatic nerve right lower extremity radiculopathy prior to January 28, 2020 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520. 11. The criteria for a rating in excess of 20 percent for sciatic nerve right lower extremity radiculopathy beginning January 28, 2020 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520. 12. The criteria for a 20 percent rating, but no higher for femoral nerve right lower extremity radiculopathy prior to January 28, 2020 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8526. 13. The criteria for a rating in excess of 20 percent for femoral nerve right lower extremity radiculopathy beginning January 28, 2020 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8526. 14. The criteria for TDIU have not been met prior to May 1, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. 15. The criteria for TDIU have been met beginning May 1, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to September 1972. The Veteran testified before the undersigned at an October 2019 Board hearing. A transcript is of record. This matter was previously remanded by the Board for development in January 2020 and has been returned for appellate review. In an October 2020 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to TDIU, effective June 1, 2018; as such, the Board will evaluate entitlement to TDIU prior to June 1, 2018. In an October 2020 rating decision, the AOJ granted a temporary total 100 percent rating from April 19, 2017 to May 31, 2018 for status post left knee replacement (previously rated as left knee strain and patellofemoral syndrome and extra articular exostosis); granted a 30 percent evaluation from June 1, 2018; and a 60 percent from January 28, 2020. Thus, the Board will evaluate entitlement to a rating in excess of 10 percent prior to April 19, 2017; a rating in excess of 30 percent beginning June 1, 2018; and a rating in excess of 60 percent beginning January 28, 2020 for left knee disability. The period from April 19, 2017 to May 31, 2018 will not be evaluated as the Veteran is in receipt of a 100 percent evaluation. In an October 2020 rating decision, the AOJ granted a temporary total 100 percent rating from February 22, 2017 to May 31, 2018 for status post right total knee replacement and revision (previously rated as right knee patellofemoral syndrome); granted a 30 percent evaluation beginning April 1, 2018; a temporary 100 percent rating from August 23, 2018 to September 30, 2018 based on surgical or other treatment necessitating convalescence; and granted a 30 percent evaluation, beginning October 1, 2018 for right knee disability. Thus, the Board will evaluate entitlement to a rating in excess of 10 percent prior to February 22, 2017; a rating in excess of 30 percent beginning prior to August 23, 2018; and a rating in excess of 30 percent beginning October 1, 2018 for right knee disability. The periods from February 22, 2017 to May 31, 2018 and from August 23, 2018 to September 30, 2018 will be excluded from evaluation as the Veteran is in receipt of 100 percent evaluations during these periods. In an October 2020 rating decision, the AOJ granted an increased evaluation for left lower extremity radiculopathy, sciatic nerve from 10 percent to 20 percent, effective January 28, 2020 based on the findings in the January 2020 VA spine examination. The Board notes that, Note (1) to the General Rating Formula for Diseases and Injuries of the Spine 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 requires consideration of neurological findings. In this regard, the Board notes that during the appeal period the Veteran’s lower extremity radiculopathy has been associated with his spine disability and under Note (1), the Board has jurisdiction over the lower extremity radiculopathy, and the thoracic spine disability. Thus, the Board will evaluate entitlement to a rating in excess of 10 percent prior to January 28, 2020 and an evaluation in excess of 20 percent beginning January 28, 2020 for left lower extremity radiculopathy. In an October 2020 rating decision, the AOJ granted separate compensable evaluation for femoral nerve, right lower extremity radiculopathy, and assigned a 20 percent evaluation, effective January 28, 2020 and granted separate compensable evaluation for sciatic nerve, right lower extremity radiculopathy and assigned a 20 percent evaluation, effective January 28, 2020, based on the findings in the January 2020 VA spine examination. As noted above, Note (1) to the General Rating Formula for Diseases and Injuries of the Spine 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 requires consideration of neurological findings. In this regard, the Board notes that during the appeal period the Veteran’s lower extremity radiculopathy has been associated with his spine disability and under Note (1), the Board has jurisdiction over the lower extremity radiculopathy, and the thoracic spine disability. Thus, the Board will evaluate entitlement to a compensable evaluation prior to January 28, 2020 and in excess of 20 percent beginning January 28, 2020 for femoral nerve, right lower extremity radiculopathy and will evaluate entitlement to a compensable evaluation prior to January 28, 2020 and in excess of 20 percent beginning January 28, 2020 for sciatic nerve, right lower extremity radiculopathy. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505(2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert, 1 Vet. App. at 49 1. Entitlement to an evaluation in excess of 20 percent for service-connected thoracic spine chronic strain and post-operative status (previously rated as healed T4 and T5 fractures) is denied. The Veteran filed a January 2013 claim for increased rating for back disability. See January 28, 2013 statement in support of claim. In a December 2013 rating decision, the AOJ granted an increase rating for thoracic spine chronic strain and post-operative status (previously rated as healed T4 and T5 fractures) from 10 percent to 20 percent, effective January 28, 2013. The Veteran is rated at 20 percent under Diagnostic Code 5235. Under the current rating criteria, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. Evaluations for intervertebral disc syndrome are to be performed either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Note 6. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Turning to the evidence of record, the Veteran was afforded VA back examinations in November 2013, May 2016, and January 2020 and the Veteran’s back disability presented the worst symptoms upon January 2020 VA back examination, which the Board finds most accurately reflects the Veteran’s symptoms for the entire period on appeal. In this regard, the Veteran reported flare-ups of the back described as severe sharp stabbing pain and stiffness and spasms. He reported having functional loss or impairment described as difficulty with prolonged sitting or standing; difficulty with any bending or twisting; needing assistance getting his socks and shoes on and most of his care at home; avoidance of any lifting; and ambulation with a walker due to poor balance and unsteady gait. Range of motion testing revealed forward flexion to 50 degrees and the Veteran was able to perform repetitive use testing with three repetitions and did not have additional limitation of range of motion. Pain was noted on examination that caused functional loss. There was evidence of pain with weight-bearing. The Veteran was not being examined immediately after repeated use over time and the examiner indicated that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The Veteran was not being examined during a flare-up and the examiner indicated that the examination is medically consistent with the Veteran’s statements describing functional loss during flare-up. Accordingly, the criteria for a rating in excess of 20 percent have not been met or more nearly approximated as the Veteran’s thoracic spine disability has not been manifested by ankylosis or flexion limited to 30 degrees or less. Thus, the claim is denied. The evidence does not support additional staged ratings for separate periods of time based on the facts found. Hart, 21 Vet. App. at 505. 2. Entitlement to a 20 percent evaluation, but no higher for sciatic nerve, left lower extremity radiculopathy prior to January 28, 2020 is granted 3. Entitlement to an evaluation in excess of 20 percent for sciatic nerve, left lower extremity radiculopathy beginning January 28, 2020 is denied. In an October 2020 rating decision, the AOJ granted an increased rating to 20 percent beginning January 28, 2020 for sciatic nerve, left lower extremity radiculopathy based on the findings in the January 2020 VA spine examination associated with his claim for increased rating for spine disability. Thus, the Board will evaluation whether a rating in excess of 10 percent is warranted prior to January 28, 2020 and a rating in excess of 20 percent is warranted beginning January 28, 2020. The Veteran’s sciatic nerve left lower extremity radiculopathy is rated under Diagnostic Code 8520. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Board finds the Veteran meets the criteria for a 20 percent rating, but no higher for his left side sciatic nerve radiculopathy for the entire period on appeal. However, the criteria for a rating in excess of 20 percent has not been met or more nearly approximated at any time during the appeal period. In this regard, a March 2014 private treatment report revealed the Veteran was having worsening back and leg pain with antalgic gait and going limp on both sides of legs. An April 2014 private treatment record indicated there is electrophysiologic evidence for subacute reinnervation in consistent with mild subacute radiculopathies. He was noted as having radicular leg pain and weakness. An August 2014 private treatment record indicated the Veteran was receiving a lumbar laminectomy for his diagnosed lumbar stenosis and radiculopathy. An April 2015 private treatment record indicated the Veteran had bilateral neuropathy with leg pain and edema. The January 2020 VA examination report indicated that the Veteran had radicular pain or any other signs or symptoms due to radiculopathy with involvement of L2/L3/L4 nerve roots (femoral nerve) on the left and involvement of L4/L5/S1/S2/S3nerve roots (sciatic nerve) bilaterally. The examination report indicated that the Veteran did not have left or right-side constant pain; had moderate intermittent pain, bilaterally; had moderate paresthesias and/or dysesthesias bilaterally; and had moderate numbness bilaterally. The examiner determined that the overall severity of the left side was moderate, and the overall severity of the right side was moderate. Thus, the Board grants a 20 percent rating, but no higher for his left side sciatic nerve radiculopathy for the entire period on appeal prior to January 28, 2020 under Diagnostic Code 8520 and denies a rating in excess of 20 percent beginning January 28, 2020 under Diagnostic Code 8520. 4. Entitlement to an initial compensable 20 percent evaluation, but no higher for sciatic nerve, right lower extremity radiculopathy prior to January 28, 2020 is granted. 5. Entitlement to an evaluation in excess of 20 percent for sciatic nerve, right lower extremity radiculopathy beginning January 28, 2020 is denied. 6. Entitlement to an initial compensable 20 percent evaluation, but no higher for femoral nerve, right lower extremity radiculopathy prior to January 28, 2020 is granted. 7. Entitlement to an evaluation in excess of 20 percent for femoral nerve, right lower extremity radiculopathy beginning January 28, 2020 is denied. The Veteran filed a January 2013 claim for increased rating for knee disabilities. See January 2013 statement in support of claim. In an October 2020 rating decision, the AOJ granted service connection for femoral nerve, right lower extremity radiculopathy, and assigned a 20 percent evaluation, effective January 28, 2020 and granted service connection for sciatic nerve, right lower extremity radiculopathy and assigned a 20 percent evaluation, effective January 28, 2020, based on the findings in the January 2020 VA spine examination. Thus, the Board will evaluate entitlement to a compensable evaluation prior to January 28, 2020 and in excess of 20 percent beginning January 28, 2020 for femoral nerve, right lower extremity radiculopathy and will evaluate entitlement to a compensable evaluation prior to January 28, 2020 and in excess of 20 percent beginning January 28, 2020 for sciatic nerve, right lower extremity radiculopathy. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a. Diagnostic Code 8526 provides ratings for paralysis of the femoral nerve. Mild incomplete paralysis is rated at 10 percent; moderate incomplete paralysis is rated at 20 percent; and severe, incomplete paralysis is rated at 30 percent. Complete paralysis of quadriceps extensor muscles is rated at 40 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Board finds the Veteran meets the criteria for a 20 percent rating, but no higher for his right side sciatic nerve radiculopathy for the entire period on appeal and meets the criteria for a 20 percent rating, but no higher for his right side femoral nerve radiculopathy for the entire period on appeal. However, the criteria for a rating in excess of 20 percent has not been met or more nearly approximated at any time during the appeal period. In this regard, a March 2014 private treatment report revealed the Veteran was having worsening back and leg pain with antalgic gait and going limp on both sides of legs. An April 2014 private treatment record indicated there is electrophysiologic evidence for subacute reinnervation in consistent with mild subacute radiculopathies. He was noted as having radicular leg pain and weakness. An August 2014 private treatment record indicated the Veteran was receiving a lumbar laminectomy for his diagnosed lumbar stenosis and radiculopathy. An April 2015 private treatment record indicated the Veteran had bilateral neuropathy with leg pain and edema. The January 2020 VA examination report indicated that the Veteran had radicular pain or any other signs or symptoms due to radiculopathy with involvement of L2/L3/L4 nerve roots (femoral nerve) on the left and involvement of L4/L5/S1/S2/S3nerve roots (sciatic nerve) bilaterally. The examination report indicated that the Veteran did not have left or right-side constant pain; had moderate intermittent pain, bilaterally; had moderate paresthesias and/or dysesthesias bilaterally; and had moderate numbness bilaterally. The examiner determined that the overall severity of the left side was moderate and the overall severity of the right side was moderate. Thus, the Board grants a 20 percent rating, but no higher for his right side sciatic nerve radiculopathy for the entire period on appeal under Diagnostic Code 8520 prior to January 28, 2020 and denies a rating in excess of 20 percent beginning January 28, 2020 under Diagnostic Code 8520. Further, the Board grants a 20 percent rating, but no higher for his right side sciatic nerve radiculopathy for the entire period on appeal under Diagnostic Code 8526 prior to January 28, 2020 and denies a rating in excess of 20 percent beginning January 28, 2020 under Diagnostic Code 8526. 8. Entitlement to an evaluation in excess of 10 percent for status post left knee replacement (previously rated as left knee strain and patellofemoral syndrome and extra articular exostosis) prior to April 19, 2017 is denied. 9. Entitlement to a 60 percent evaluation, but no higher for status post left knee replacement (previously rated as left knee strain and patellofemoral syndrome and extra articular exostosis) beginning June 1, 2018 is granted. 10. Entitlement to an evaluation in excess of 60 percent for status post left knee replacement (previously rated as left knee strain and patellofemoral syndrome and extra articular exostosis) beginning January 28, 2020 is denied. The Veteran filed a January 2013 claim for increased rating for knee disabilities. See January 2013 statement in support of claim. In an October 2020 rating decision, the AOJ granted a temporary total 100 percent rating from April 19, 2017 to May 31, 2018 for status post left knee replacement (previously rated as left knee strain and patellofemoral syndrome and extra articular exostosis); granted a 30 percent evaluation from June 1, 2018; and a 60 percent from January 28, 2020. Thus, the Board will evaluate entitlement to a rating in excess of 10 percent prior to April 19, 2017; a rating in excess of 30 percent beginning June 1, 2018; and a rating in excess of 60 percent beginning January 28, 2020 for left knee disability. The period from April 19, 2017 to May 31, 2018 will not be evaluated as the Veteran is in receipt of a 100 percent evaluation. Prior to the Veteran’s total left knee replacements in April 19, 2017, the Veteran’s left knee was assigned a 10 percent rating under Diagnostic Code 5260. Thereafter, the Veteran’s left knee was rating under Diagnostic Code 5055, which provides the rating criteria for the prosthetic replacement of a knee joint. Under Diagnostic Code 5055, for one year following implantation, the knee joint warrants an evaluation of 100 percent. 38 C.F.R. § 4.71a. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent evaluation is warranted. Where there are intermediate degrees of residual weakness, pain, or limitation of motion, Diagnostic Code 5055 instructs that they are to be rated by analogy to Diagnostic Code 5256, 5261, or 5262. The minimum evaluation for the residuals of the prosthetic replacement of a knee joint is 30 percent. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. For the period prior to April 19, 2017, the criteria for a rating in excess of 10 percent have not been met or more nearly approximated. The November 2013 VA knee examination report indicated the Veteran had left knee flexion to 100 degrees with objective evidence of painful motion beginning at 100 degrees. There was no limitation of extension. The Veteran was able to perform repetitive use testing with three repetitions and did not have additional limitation of range of motion. There was no evidence or history of recurrent patellar subluxation/dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment, or any meniscal condition. The May 2016 VA knee examination report indicated the Veteran reported flare ups of described as “sometimes the pain is worse than usual.” He did not report having any functional loss or functional impairment of the knees being, including but not limited to repeated use over time. Examination of the Veteran revealed left knee flexion from zero to 90 degrees and extension from 90 to zero degrees; range of motion itself did not contribute to functional loss; there was evidence of pain with weight bearing and pain was noted on examination that did not result in functional loss; and there was no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and did not have additional limitation of range of motion. The Veteran did not have joint instability, a meniscus (semilunar cartilage) condition, or recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment). As the evidence does not demonstrate the Veteran meets the criteria for a rating in excess of 10 percent as he did not demonstrate flexion limited to 30 degrees and the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee; the claim for rating in excess of 10 percent for left knee disability prior to April 2017, is denied. Turning to the applicable period on appeal beginning June 1, 2018, the Board finds the Veteran’s left knee disability meets the criteria for a 60 percent rating, but no higher. However, the criteria for a rating in excess of 60 percent has not been met at any time during the applicable period on appeal. In this regard, the January 2020 VA knee examination report indicated that the Veteran had bilateral knee chronic pain and stiffness. Further, he had daily aching and throbbing pain, severe at times; severe loss of range of motion; difficulty walking long distance; and he was only able to stand a couple of minutes without resting. Resolving reasonable doubt in favor of the Veteran, the Board finds that a 60 percent evaluation, but no higher for the entire appeal period beginning June 1, 2018 is warranted, but a rating in excess of 60 percent must be denied. A rating in excess of 60 percent is not warranted at any point during the appeal. Diagnostic Code 5055 does not allow for a rating higher than 60 percent other than during the year following implantation of prosthesis. 38 C.F.R. § 4.71a. Thus, the Veteran is now receiving the highest schedular rating available for left knee replacement. The Board has considered whether a higher rating, through a single rating or combination of ratings, could be assigned by using the rating criteria specific to the knee rather than Diagnostic Code 5055, but finds that this would not result in a higher rating at any time during the course of the appeal. In this regard, the Board initially notes that as Diagnostic Code 5055 contemplates painful motion and weakness, separate ratings (in addition to rating under Diagnostic Code 5055) under Diagnostic Codes 5259, 5260, or 5261 would constitute impermissible pyramiding. 38 C.F.R. §§ 4.14, 4.71a. Instead the Board will look at if Diagnostic Codes other than 5055 could produce a more favorable rating. Beginning June 1, 2018, the Board has assigned a 60 percent rating under Diagnostic Code 5055 which is the most more beneficial to the Veteran. 11. Entitlement to an evaluation in excess of 10 percent for status post right total knee replacement and revision (previously rated as right knee patellofemoral syndrome) prior to February 22, 2017 is denied. 12. Entitlement to a 60 percent evaluation, but no higher for status post right total knee replacement and revision (previously rated as right knee patellofemoral syndrome) beginning April 1, 2018 is granted. 13. Entitlement to a 60 percent evaluation, but no higher for status post right total knee replacement and revision (previously rated as right knee patellofemoral syndrome) beginning October 1, 2018 is granted. The Veteran filed a January 2013 claim for increased rating for knee disabilities. See January 2013 statement in support of claim. In an October 2020 rating decision, the AOJ granted a temporary total 100 percent rating from February 22, 2017 to May 31, 2018 for status post right total knee replacement and revision (previously rated as right knee patellofemoral syndrome); granted a 30 percent evaluation beginning April 1, 2018; a temporary 100 percent rating from August 23, 2018 to September 30, 2018 based on surgical or other treatment necessitating convalescence; and granted a 30 percent evaluation, beginning October 1, 2018 for right knee disability. Thus, the Board will evaluate entitlement to a rating in excess of 10 percent prior to February 22, 2017; a rating in excess of 30 percent beginning prior to August 23, 2018; and a rating in excess of 30 percent beginning October 1, 2018 for right knee disability. The periods from February 22, 2017 to May 31, 2018 and from August 23, 2018 to September 30, 2018 will be excluded from evaluation as the Veteran is in receipt of 100 percent evaluations during these periods. Prior to the Veteran’s total right knee replacements in February 22, 2017 and August 23, 2018, the Veteran’s right knee was assigned a 10 percent rating under Diagnostic Code 5260. Thereafter, the Veteran’s right knee was rating under Diagnostic Code 5055, which provides the rating criteria for the prosthetic replacement of a knee joint. Under Diagnostic Code 5055, for one year following implantation, the knee joint warrants an evaluation of 100 percent. 38 C.F.R. § 4.71a. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent evaluation is warranted. Where there are intermediate degrees of residual weakness, pain, or limitation of motion, Diagnostic Code 5055 instructs that they are to be rated by analogy to Diagnostic Code 5256, 5261, or 5262. The minimum evaluation for the residuals of the prosthetic replacement of a knee joint is 30 percent. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. For the period prior to February 22, 2017, the criteria for a rating in excess of 10 percent have not been met or more nearly approximated. The November 2013 VA knee examination report indicated the Veteran had right knee flexion to 90 degrees with objective evidence of painful motion beginning at 90 degrees. There was no limitation of extension. The Veteran was able to perform repetitive use testing with three repetitions and did not have additional limitation of range of motion. There was no evidence or history of recurrent patellar subluxation/dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment, or any meniscal condition. The May 2016 VA knee examination report indicated the Veteran reported flare ups of described as “sometimes the pain is worse than usual.” He did not report having any functional loss or functional impairment of the knees being, including but not limited to repeated use over time. Examination of the Veteran revealed right knee flexion from zero to 110 degrees and extension from 110 to zero degrees; range of motion itself did not contribute to functional loss; there was evidence of pain with weight bearing and pain was noted on examination that did not result in functional loss; and there was no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and did not have additional limitation of range of motion. The Veteran did not have joint instability, a meniscus (semilunar cartilage) condition, or recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment). As the evidence does not demonstrate the Veteran meets the criteria for a rating in excess of 10 percent as he did not demonstrate flexion limited to 30 degrees and the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee; the claim for rating in excess of 10 percent for left knee disability prior to February 22, 2017, is denied. Turning to the applicable periods on appeal beginning April 1, 2018, and October 1, 2018 the Board finds the Veteran’s left knee disability meets the criteria for a 60 percent rating, but no higher. However, the criteria for a rating in excess of 60 percent has not been met at any time during the applicable period on appeal. In this regard, the January 2020 VA knee examination report indicated that the Veteran had bilateral knee chronic pain and stiffness. Further, he had daily aching and throbbing pain, severe at times; severe loss of range of motion; difficulty walking long distance; and he was only able to stand a couple of minutes without resting. Resolving reasonable doubt in favor of the Veteran, the Board finds that a 60 percent evaluation, but no higher for the entire applicable appeal periods beginning April 1, 2018, and October 1, 2018 is warranted, but a rating in excess of 60 percent must be denied. A rating in excess of 60 percent is not warranted at any point during the appeal. Diagnostic Code 5055 does not allow for a rating higher than 60 percent other than during the year following implantation of prosthesis. 38 C.F.R. § 4.71a. Thus, the Veteran is now receiving the highest schedular rating available for left knee replacement. The Board has considered whether a higher rating, through a single rating or combination of ratings, could be assigned by using the rating criteria specific to the knee rather than Diagnostic Code 5055, but finds that this would not result in a higher rating at any time during the course of the appeal. In this regard, the Board initially notes that as Diagnostic Code 5055 contemplates painful motion and weakness, separate ratings (in addition to rating under Diagnostic Code 5055) under Diagnostic Codes 5259, 5260, or 5261 would constitute impermissible pyramiding. 38 C.F.R. §§ 4.14, 4.71a. Instead the Board will look at if Diagnostic Codes other than 5055 could produce a more favorable rating. For the periods on appeal beginning April 1, 2018, and October 1, 2018, the Board has assigned a 60 percent rating under Diagnostic Code 5055 which is the most more beneficial to the Veteran. 14. Entitlement to a TDIU prior to May 1, 2014 is denied. 15. Entitlement to a TDIU beginning May 1, 2014 is granted. The Veteran filed a January 28, 2013 claim for increased rating. See January 2013 statement in support of claim. In an October 2020 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to TDIU, effective June 1, 2018; as such, the Board will evaluate entitlement to TDIU prior to June 1, 2018. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16 (a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s service-connected disabilities are coronary artery disease; status post left knee replacement; chronic tension headaches; status post right knee replacement; thoracic spine strain and post operative status; right lower extremity sciatic nerve radiculopathy; left lower extremity sciatic nerve radiculopathy; left lower extremity femoral nerve radiculopathy; right lower extremity femoral nerve radiculopathy; hypertension; right hip trochanter chronic bursitis; left ear hearing loss; left knee surgical scar; right knee surgical scar; and lumbar spine surgical scar. The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis for the entire period on appeal. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board finds that prior to May 1, 2014 the criteria for TDIU have not been met as the Veteran was working full-time. In this regard, in an April 2013 statement in support of claim, the Veteran reported that he was still currently employed because he could not afford to stop working. See April 25, 2013 statement in support of claim. Further, Social Security Administration (SSA) records indicated the Veteran’s highest-grade level of education completed was 12th grade and he last worked on April 30, 2014 as an extermination supervisor. Further, the Veteran’s employer confirmed that he last worked on April 30, 2014 and prior to April 30, 2014, he was working 45 hours per week. See VA Form 21-4192. The Board finds that beginning May 1, 2014, the criteria for TDIU have been met. In this regard, the Veteran’s employer confirmed that he last worked on April 30, 2014. See VA Form 21-4192. In a February 2015 correspondence, the Veteran reported that due to complications with his back and back surgery he can no longer stand and up and is no longer able to work. The May 2016 VA knee examiner opined that Veteran’s bilateral knee disabilities impacted his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) and explained that his bilateral knees impacted his ability to perform activities requiring standing for long periods, running/jogging, kneeling, squatting, and moderate to heavy lifting. The May 2016 VA back examiner opined that Veteran’s back disability impacted his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) and explained that his bilateral knees impacted his ability to perform activities requiring standing for long periods, running/jogging, kneeling, squatting, and moderate to heavy lifting. The May 2018 VA knee examiner opined that bilateral knee disabilities impacted his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) and explained that his bilateral knees would cause difficulty with prolonged walking and standing. Accordingly, prior to May 1, 2014 to Veteran’s service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment, and beginning May 1, 2014 the service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.