Citation Nr: 21014460 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 10-07 184 DATE: March 12, 2021 ORDER 1. An evaluation greater than 30 percent, for left status lost total knee replacement, prior to January 16, 2007 is denied. 2. An evaluation of 60 percent, and no higher, for left status post total knee replacement, from January 16, 2007 to October 9, 2020 is granted. 3. An evaluation greater than 60 percent for left status post total knee replacement from October 9, 2020 forward is denied. 4. An evaluation greater than 10 percent for post-operative right knee injury with degenerative joint disease (DJD), prior to March 2, 2010 is denied. 5. A separate rating of 30 percent for right knee limitation of extension for post-operative right knee injury with DJD from January 1, 2009 to September 8, 2015 is granted. 6. An evaluation of 60 percent, and no higher, for right knee total arthroplasty, previously addressed as DJD, from November 1, 2016 to October 9, 2020, is granted. 7. An evaluation in excess of 60 percent for right knee total arthroplasty, previously addressed as DJD, from October 9, 2020 forward is denied. 8. An earlier effective date of January 16, 2007, but no earlier, for the grant of a total disability rating based on individual unemployability as a result of service-connected disabilities is granted. FINDINGS OF FACT 1. Prior to January 16, 2007, the competent medical evidence of record does not reveal severe painful motion or weakness of the left knee. 2. From January 16, 2007 to October 9, 2020, the competent medical evidence of record demonstrates that the Veteran’s left status-post total knee replacement was manifested by chronic residuals such as pain, weakness, and limited range of motion (ROM). 3. From October 9, 2020 forward, by application of the “Amputation Rule,” a rating in excess of 60 percent is not available for left total knee replacement. 4. Prior to September 8, 2015, the Veteran’s flexion is, at worst, limited to 45 degrees; From January 1, 2009, the Veteran’s extension is, at worst, limited to 25 degrees; thus, a separate rating of 30 percent under DC 5261 is warranted. 5. From November 1, 2016 to October 9, 2020, the Veteran’s right knee has been manifested by chronic residual such as painful motion and weakness; thereafter, the amputation rule prevents a rating in excess of 60 percent. 6. On January 16, 2007, the Veteran met the schedular requirements for a TDIU. CONCLUSIONS OF LAW 1. Prior to January 16, 2007, the criteria for the assignment of a disability rating in excess of 30 percent for the service-connected status-post total left knee replacement have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.71, 4.71a, DC 5055. 2. From January 16, 2007 to October 9, 2020, the criteria for the assignment of a 60 percent disability rating, but no higher, for the service-connected status-post total left knee replacement have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.71, 4.71a, DC 5055. 3. From October 9, 2020 forward, the criteria for an evaluation in excess of 60 percent for the service-connected status-post total left knee replacement have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.71, 4.71a, DC 5055. 4. Prior to September 8, 2015, the criteria for entitlement to a rating in excess of 10 percent for a right knee disability, based on limitation of flexion, are not met. 38 U.S.C. §§ 4.3, 4.7, 1155; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260. 5. From January 1, 2009 to September 8, 2015, the criteria for entitlement to a separate compensable rating of 30 percent for a right knee disability, based on limitation of extension, are met. 38 U.S.C. §§ 4.3, 4.7, 1155; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5261. 6. From November 1, 2016 to October 9, 2020, the criteria for entitlement to a rating of 60 percent, and no higher, for right knee total arthroplasty, previously addressed as DJD, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.71, 4.71a, DC 5055. 7. From October 9, 2020 forward, the criteria for an evaluation in excess of 60 percent for the service-connected right knee total arthroplasty, previously addressed as DJD, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.71, 4.71a, DC 5055. 8. The criteria for an effective date of January 16, 2007, but no earlier, for the grant of a TDIU have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to August 1984. These matters initially came to the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision that, in pertinent part, denied disability ratings in excess of 10 percent for service-connected residuals of post-operative right knee injury with degenerative joint disease, and in excess of 30 percent for service-connected status-post total left knee replacement. These matters were remanded by the Board for additional development in March 2012, September 2015, and December 2017 for additional development, including the most recent December 2017 remand which required that the Veteran be afforded a VA examination that addresses his flare-ups. Additionally, the December 2017 remand also remanded the Veteran’s TDIU claim for an earlier effective date noting that adjudication of the Veteran’s request for TDIU is inextricably intertwined with the other remanded claims since the Veteran’s rating might determine whether schedular or extraschedular TDIU is appropriate for consideration earlier than it is currently assigned. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. 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. As this is a non-initial claim, the appeal period before the Board begins on December 8, 2008, the date VA received the Veteran’s claim for an increased rating, plus the one-year look-back period. 38 C.F.R. § 3.400 (o)(2); see also Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 1. An evaluation greater than 30 percent, for left status lost total knee replacement, prior to January 16, 2007 is denied. 2. An evaluation of 60 percent, and no higher, for left status post total knee replacement, from January 16, 2007 to October 9, 2020 is granted. 3. An evaluation greater than 60 percent for left status post total knee replacement from October 9, 2020 forward is denied. During the period on appeal, the left knee is rated 30 percent prior to October 9, 2020, and 60 percent thereafter under Diagnostic Code (DC) 5055. 38 C.F.R. § 4.71a. The Board concludes that the Veteran’s disability picture, to include the Veteran’s statements, more nearly approximates a 30 percent evaluation prior to January 16, 2007, a 60 percent evaluation from January 16, 2007 to October 9, 2020, and a 60 percent evaluation thereafter. Diagnostic Code 5055 is clearly applicable because it pertains specifically to the disability at issue following the Veteran’s 2001 total left knee replacement. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code be used. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5055, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, knee replacement (prosthesis) warranted a 30 percent rating for knee replacement with intermediate degrees of residual weakness, pain, or limitation of motion rated by analogy to DC 5256, 5261, or 5262. 60 percent rating for knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity, and finally a total 100 percent rating for one year following implantation of prothesis. As of February 7, 2021, Diagnostic Code 5055 warrants a 30 percent minimum rating with total replacement only; a 60 percent rating for with chronic residuals consisting of severe painful motion or weakness in the affected extremity with intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262, and total 100 percent for four months following implantation of prosthesis or resurfacing. Ankylosis of the knee that is a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, warrants a 30 percent evaluation. Ankylosis in flexion between 10 and 20 degrees is rated 40 percent disabling. Ankylosis in flexion between 20 and 45 degrees is rated 50 percent disabling. Ankylosis which is extremely unfavorable, in flexion at an angle of 45 degrees or more is rated 60 percent disabling. See 38 C.F.R. § 4.71a, DC 5256. Limitation of leg extension is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261. A 40 percent rating under DC 5262 requires nonunion of the tibia and fibula with loose motion, requiring use of a brace. Malunion of the tibia and fibula with marked knee or ankle disability allows for the assignment of a 30 percent rating; with moderate disability, 20 percent; and with slight disability 10 percent. See 38 C.F.R. § 4.71a, DC 5262. As described above, the Veteran underwent a left total knee replacement in 2001. A 30 percent rating was assigned from April 1, 2002 to October 8, 2020, and a 60 percent rating from October 9, 2020 forward. The Board has reviewed the evidence of record and, for the reasons expressed below, finds that a rating greater than 30 percent is not warranted prior to January 16, 2007, a rating of 60 percent is warranted from January 16, 2007 to October 9, 2020, and a rating greater than 60 percent thereafter is not warranted. VA treatment records from January 2007 indicate bilateral weakness of the knees. Additionally, during treatment in December 2008, the Veteran complained of bilateral knee pain. Accordingly, for the period dating from January 16, 2007 forward, the Veteran is in receipt of a 60 percent rating. The higher rating of 100 percent under Diagnostic Code 5055 is not applicable, as it is only warranted for the first 12 months following prosthetic replacement of the knee. Further, consideration of a rating under Diagnostic Codes 5256, 5261, or 5262 is not required, as a higher rating is also not available under the aforesaid Diagnostic Codes. To this end, the Veteran’s left total knee replacement is located in the lower third of his thigh, and pursuant to the amputation rule, set forth at 38 C.F.R. § 4.68, the assigned disability rating may not exceed 60 percent for that knee. See 38 C.F.R. § 4.71a, DC 5162. Therefore, by application of the “Amputation Rule,” as set forth at 38 C.F.R. § 4.68, a rating in excess of 60 percent is not available for left total knee replacement from October 9, 2020 forward. As to the ratings and time periods addressed above, the Board has also considered whether referral for extraschedular consideration is warranted, but finds that it is not. In this regard, the Board finds that the symptoms of the Veteran’s bilateral knee disability have not been so exceptional or unusual that the schedular criteria do not adequately compensate for them. Here, the Veteran’s main symptoms have been pain, decreased motion, weakness, swelling, tenderness, and limitation of activities. The Board does not find that the Veteran’s symptoms take his case outside the norm such that referral for consideration of a higher evaluation on an extraschedular basis is required. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R § 3.321 (b)(1). Indeed, the rating schedule and associated regulations compensate for limited motion and other described symptoms. Although limitation of activities such as walking and standing are not specifically noted in the rating schedule, these are manifestations of knee pain, which is accounted for by the rating schedule. Cf. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). For the foregoing reasons, the Board finds that a rating in excess of 30 percent prior to January 16, 2007 must be denied; however, a 60 percent rating, but no higher, is warranted from January 16, 2007 forward. 4. An evaluation greater than 10 percent for post-operative right knee injury with degenerative joint disease (DJD), prior to September 8, 2015, is denied. 5. A separate rating of 30 percent for right knee limitation of extension for post-operative right knee injury with DJD from January 29, 2009 to September 8, 2015 is granted. The Veteran’s right knee disability is currently rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5620 for leg flexion limited to 45 degrees. See June 2004 Rating Decision. 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). 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). 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 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). Ratings can be assigned for knee subluxation or instability under Diagnostic Code 5257. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. The term “severe” is used throughout the rating schedule, including in Diagnostic Code 5257, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Code 5257, which establishes a successive, tiered rating structure, it represents the highest or most extreme level. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. Lastly, regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. Note (2). Additionally, prior to the regulatory change, DC 5010 for post traumatic arthritis was to be rated as degenerative arthritis. DC 5003 outlines the criteria for rating degenerative arthritis. DC 5003 states that degenerative arthritis established by degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. When limitation of motion is noncompensable, under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint group or group of joints affected by limitation of motion to be combined, not added. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In absence of limitation of motion, a 20 percent rating is assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent rating is assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Id. Note (1) explains that the above 10 and 20 percent ratings will not be combined with ratings based on limitation of motion. Id. As of February 7, 2021, Diagnostic Code 5010 requires rating as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. Range of motion testing was performed during VA examinations in January 2007 and January 2009, and was at worst 120 degrees of flexion and 20 degrees of extension. At the January 2007 examination, the Veteran confirmed pain, and periods of flare; however, no additional testing was performed by the examiner to reveal any additional limitations during periods of flare or after repetitive use. The examiner did, however, note the Veteran’s report that he experiences nearly 100 percent further impairment with both knees during a flare up. The examiner did not specify whether the Veteran experiences further impairment during flexion or extension motions. March 2010 VA treatment record reveals a physical therapy consult which notes right knee range of motion from 25 degree to 80 degrees. A March 2011 VA examination reveals limited mobility due to pain and instability of bilateral knees. In July 2010, the Veteran denied any right knee locking, but confirmed right knee pain, swelling, clicking, and popping. December 2011 VA treatment record reveals right knee with tenderness, minimal swelling, no effusion, and no dislocation. The Veteran underwent an April 2015 VA examination for his right knee condition. The report notes the Veteran’s denial of flare-ups, and his confirmation of functional loss or impairment of bilateral knees including, but not limited to, repeated use over time. Right knee flexion was to 120 degree, and extension to 0 degrees. Pain which caused functional loss was noted upon examination. Observed repetitive use of the right knee revealed no additional functional loss or range of motion after three repetitions. The examiner opined that she was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over time. The rationale explained that it would only be speculative to report additional ROM loss and whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when joint is used repeatedly over a period of time when it has not been documented in the actual records or when reported symptoms are incongruent to findings on imaging and clinical exam. No ankylosis, meniscal conditions, recurrent subluxation, or lateral instability was found. The Veteran underwent a right knee total arthroplasty in September 2015. As an initial matter the Board notes that the record does not contain evidence, nor does the Veteran contend, that he has ankylosis (DC 5256), impairment of the tibia and fibula (DC 5262), genu recurvatum (DC 5263), or that his right knee would be equally or better served by amputation of the affected limb. Additionally, the Board finds the April 2015 examination to be less probative on the issue of whether pain, weakness, fatigability or incoordination significantly limits functional ability. The examiner indicated that they could not provide an opinion as to whether pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over time. The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered with repeated use over time and then estimate the veteran’s functional loss based on all the evidence of record- including the veteran’s lay information-or explain why she or he could not do so. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The record before the Board shows that, at worst, the Veteran’s right knee flexion is limited to 80 degrees. This is non-compensable under VA standards. However, the record also shows that previous to the appeal period before the Board, the Veteran was noted to have limited right-knee flexion to 45 degrees, which is the reason for the 10 percent rating under DC 5260 assigned by the RO. The Board has considered whether the Veteran is entitled to higher ratings for the service-connected arthritis of the right knees under 38 C.F.R. §§ 4.40, 4.45 and 4.59 on the basis of additional functional loss during flare-ups or upon repetitive use over time. See DeLuca, 8 Vet. App. 202 (1995). However, the record does not show that the Veteran had additional functional loss during flare-ups or upon repetitive use over time such that his flexion was more closely described as being limited to 30 degrees at any time during the appeal period. The Board acknowledges the VA examiners’ failure to note any additional functional limitations in certain circumstances, such as after repetitive use or during periods of flare. However, and unfortunately, the Board can only assess the record before it, and the VA examinations noted above are the most competent and probative medical opinions of record, during this period. The Veteran has shown extension to, at worst, 25 degrees. Thus, the Board finds that the Veteran’s right knee disability is warranted a separate maximum rating of 30 percent under 5261 for the period on appeal. The Board notes the Veteran’s report of instability, but finds that a separate rating under 5257 is not warranted because the Veteran’s subjective complaints of instability are not supported by the objective evidence of record. Joint stability tests on VA examination in April 2015 were normal. In this regard, the Board finds that the specific findings by the trained health care professional who conducted the VA examination in April 2015 is of greater probative value than the Veteran’s lay assertions and subjective complaints. Moreover, although the record reveals pain, clicking and popping, the Veteran has denied locking; thus, DC 5258 is not applicable. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for the period prior to September 2015 for the right knee limitation of flexion under DCs 5010 or 5261. However, the Board finds that a separate rating of 30 percent for the Veteran’s limited extension to, at worst, 25 degrees is warranted under DC 5261. 6. An evaluation of 60 percent, and no higher, for right knee total arthroplasty, previously addressed as DJD, from November 1, 2016 to October 9, 2020, is granted. 7. An evaluation in excess of 60 percent for right knee total arthroplasty, previously addressed as DJD, from October 9, 2020 forward is denied The Veteran underwent a total right knee arthroplasty in September 2015 (i.e., total knee replacement) and was assigned a temporary total rating from that date, which expired on November 1, 2016. Treatment records, and VA examinations dated from May 2016 to October 2020 all note right knee pain and weakness. Specifically, in January 2017, the Veteran reported right knee pain rated at level 7 on a rating scale of 1 to 10. Additionally, during the February 2017 VA examination for knee conditions, the Veteran reported flare-ups resulting in weakness of the right knee. Upon review of the evidence, the Board finds that, when reasonable doubt is resolved in the Veteran’s favor, his right knee total arthroplasty has resulted in chronic residuals consisting of severe painful motion and weakness, such that a 60 percent rating under DC 5055 is warranted from November 1, 2016 prior to October 9, 2020. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Veteran is competent to report his perceived level of pain and the Board has no reason to doubt his credibility in indicting a pain level of 7 on a rating scale of 1 to 10, or his other residuals symptoms of weakness and decreased functional capacity. The higher rating of 100 percent under Diagnostic Code 5055 is not applicable, as it is only warranted for the first 12 months following prosthetic replacement of the knee. Further, consideration of a rating under Diagnostic Codes 5256, 5261, or 5262 is not required, as a higher rating is also not available under the aforesaid Diagnostic Codes. To this end, the Veteran’s left total knee replacement is located in the lower third of his thigh, and pursuant to the amputation rule, set forth at 38 C.F.R. § 4.68, the assigned disability rating may not exceed 60 percent for that knee. See 38 C.F.R. § 4.71a, DC 5162. Therefore, by application of the “Amputation Rule,” as set forth at 38 C.F.R. § 4.68, a rating in excess of 60 percent is not available for left total knee replacement from October 9, 2020 forward. As the preponderance of evidence is against the claim, a rating greater than 60 percent for right knee status post-meniscectomy with arthroscopy must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, (1990). The Board has also considered whether referral for extraschedular consideration is warranted, but finds that it is not. In this regard, the Board finds that the symptoms of the Veteran’s right knee disability have not been so exceptional or unusual that the schedular criteria do not adequately compensate for them. Here, the Veteran’s main symptoms have been pain, weakness, and limitation of activities. The Board does not find that the Veteran’s symptoms take his case outside the norm such that referral for consideration of a higher evaluation on an extraschedular basis is required. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R § 3.321 (b)(1). 8. An earlier effective date of January 16, 2007, but no earlier, for the grant of a total disability rating based on individual unemployability as a result of service-connected disabilities is granted. A February 2017 rating decision granted the Veteran a TDIU effective November 1, 2016, the date he met the schedular requirements. The Veteran asserts that he is entitled to an earlier effective date. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more 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 disability or more. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. The Veteran now meets the schedular requirements as of January 16, 2007. The April 2015 VA examiner opined that the Veteran’s bilateral knee conditions would limit occupations that require strenuous heavy lifting or prolonged standing/walking. In providing this opinion, the examiner highlighted the Veteran’s work history, which included a warehouse worker loading and unloading boxes for 12 years. The evidence of record establishes that the Veteran's service-connected disabilities prevent him from sustaining substantial gainful employment. As such, the Board concludes that resolving any reasonable doubt in the Veteran's behalf, TDIU is warranted as of the date the Veteran met the schedular requirements for a TDIU on January 16, 2007, but no earlier. Accordingly, an earlier effective date of January 16, 2007, but no earlier, is warranted for the grant of TDIU, and the Veteran's claim is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.