Citation Nr: 21015350 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 10-22 582 DATE: March 17, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to July 10, 2019, and in excess of 40 percent thereafter for left knee total arthroplasty (TKA) is denied. REMANDED Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU), to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Prior to July 10, 2019, the Veteran’s left knee TKA manifested in, at worst, intermediate degrees of residual weakness, pain, or limitation of motion; and without severe painful motion or weakness in the affected extremity. 2. Beginning July 10, 2019, the Veteran’s left knee TKA manifested in range of motion of, at worst, flexion to 60 degrees and extension to 40 degrees; and without severe painful motion or weakness in the affected extremity. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent prior to July 10, 2019, and in excess of 40 percent thereafter for left knee TKA are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 – 4.14, 4.71a, Diagnostic Codes 5055, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1972 to November 1975. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Hartford, Connecticut. Jurisdiction of this appeal is currently with the RO in Los Angeles, California. In August 2017, the Board issued a decision denying the Veteran’s claims for an increased rating for his left tonal knee arthroplasty (TKA), and entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2018 Order, the Court granted a Joint Motion for Partial Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion. This case was most recently before the Board in January 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. Increased Rating – Left Knee TKA The Veteran contends that he is entitled to a higher rating for his service-connected left TKA because his symptoms are worse than contemplated by the current rating assigned. Specifically, the Veteran’s prior representative asserted that his left knee symptomatology of weakness, difficulty walking more than 50 yards, fatigability, burning, constant clicking with the knee from walking, pain, and flexion presented a greater degree of impairment than the 30 percent assigned rating. See Appellate brief, November 7, 2013. Additionally, his attorney argues that the Veteran is entitled to a 60 percent disability rating due to the Veteran’s consistent reports of sharp or stabbing pain, inability to sit for more than 20 or 30 minutes, inability to stand or walk for long periods of time, and constant distracting pain, and noted in lay statements submitted. See Third Party Correspondence, July 5, 2018. Additionally, the Veteran’s attorney argues the Veteran’s use of knee brace and cane in order to ambulate warrant a higher rating. Id. His attorney asserts the Veteran has exhibited severe painful motion that interfered with his ability to walk and stand and intermediate degrees of weakness and instability that warrant higher ratings. Id. Moreover, the Veteran asserts that his left knee symptoms include inability to straighten his knee; inability to walk for prolonged periods; atrophy of leg muscles; pain; interference with weight-bearing; sharp pain; and clicking. See VA Form 9, May 19, 2010. Moreover, the Board notes that in the July 2018 Joint Motion for Remand, the Court and parties found that the Board did not adequately explain why lateral instability did not constitute objective evidence of instability pursuant to Diagnostic Code 5257, and required explanation of the June 2016 objective evidence of instability; and found the Board did not adequately provide a statement of reasons or bases for denial to a rating in excess of 30 percent based on intermediate degrees of residual weakness, pain, or limitation of motion. See Joint Motion for Remand, March 22, 2018. Specifically, the Joint Motion for Remand found the Board did not adequately explain why the veteran’s allegations of sharp or stabbing pain, inability to sit for more than 20 to 30 minutes, inability to stand or walk for prolonged periods, and constant distracting pain reflected intermediate manifestations as opposed to severe pain or weakness as related to a TDIU pursuant to Diagnostic Code 5055. Id. Finally, the Veteran’s former representative asserts the Veteran’s left knee symptoms warrant extraschedular consideration. See Appellate Brief, November 7, 2013. Specific argument in support of this contention has not been provided. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107; 38 C.F.R. § § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s service connected left knee TKA is rated as 30 percent disabling prior to July 10, 2019, and 40 percent thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5055. Effective July 16, 2015, VA published a final rule that added an explanatory note after 38 C.F.R. § 4.71a, Prosthetic Implants, Diagnostic Codes 5051 to 5056. The note states that the term “prosthetic replacement” as used for these codes “means a total replacement of the named joint,” except as noted for Diagnostic Code 5054 for the hip. The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the present case, the Veteran’s claim for an increased rating for left knee TKA stem from a periodic reevaluation of his left knee disorder, and subsequent appeal, beginning in February 2009, with an appellate period beginning February 2008, prior to the February 2021 effective date for these amendments. Additionally, there is no pertinent evidence associated with the claims file after February 7, 2021. Therefore, the February 2021 musculoskeletal criteria do not apply to the Veteran’s claim on appeal and the appropriate criteria are discussed below. In Hudgens v. McDonald, the Federal Circuit held that Diagnostic Code 5055 is not limited to total knee replacements, and that a partial knee replacement may be compensated under Diagnostic Code 5055. 823 F.3d 630, 639 (2016). The Federal Circuit found that it would be consistent with Hudgens v. McDonald, 823 F.3d 630 (2016), and permissible to conclude that Diagnostic Code 5055 applies to partial knee replacements prior to the July 16, 2015 regulatory amendment. The amendment does not specify retroactive applicability and, thus, applies from July 16, 2015, forward. If a claim was pending at the time the regulation change was made, the Veteran is entitled to application of the more favorable (prior) version. However, it should be explicitly stated why the assignment of Diagnostic Code 5055 to a partial knee replacement is necessary, with citation to Hudgens v. McDonald, 823 F.3d 630 (2016). Under Diagnostic Code 5055, a 30 percent rating is warranted for a prosthetic replacement of a knee joint with intermediate degrees of residual weakness, pain or limitation of motion. A 60 percent rating is warranted for a prosthetic replacement of a knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 100 percent rating is warranted for one year following the implantation of prosthesis. 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 zero 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. 3 8 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. Board notes that the Veteran is already in receipt of a separate rating for instability. 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. Initially, the Board notes that service connection is in effect for left knee instability and left knee surgical scar, both associated with his left knee TKA. Specifically, a November 2018 rating decision granted service connection for left knee instability, and an October 2019 rating decision granted service connection for a left knee scar. Those issues are currently not on appeal. Therefore, the Board will not consider an increased rating for the left knee based on instability nor for the left knee scars, and such will not be discussed further in this decision. Turning to the evidence, the Veteran was afforded a VA examination in February 2009. At that time, the Veteran reported the surgical procedure was done without complication, and since his surgery he noted his “bone on bone” pain had resolved. The Veteran reported that when walking more than 50 yards, he had weakness, fatigability, a burning sensation that resolved with rest, constant clicking from the knee when walking, and anterior knee pain with flexion. He reported walking with a slight lean or favoring the right side when walking to compensate for his left knee. He denied swelling, heat, redness, instability, or locking. His most severe pain was 8 out of 10 pain intensity in the morning, with stiffness, that improved to a 3 out of 10 pain intensity with pain medication and mobilization. He denied flare-up, and used a left knee brace on occasion for support. He had not used his cane for six months, and did not need corrective shoes. The Veteran reported he could not run or kneel, but was able to lift his 20 pound dog and do some yardwork at home. The Veteran had not worked since he was on social security disability that started in 1999. The examiner noted there were no side effects of his medication; no periods of flare-ups of the knee; only occasional knee brace that was not worn on examination; did not have episodes of dislocation or recurrent subluxation; and that his right extremity dominant. The examiner noted that assistive devices, such as crutches or brace, were not needed. The Veteran’s range of motion measurements were as follows: maximum extension to 15 degrees (could not fully extend); maximum flexion to 115 degrees (could not fully flex); flexion pain range was between 105 degree to 115 degrees; and there was no reduction in range of motion after repetitive flexion and extension, but weakness was noted. The Veteran had full strength with both flexion and extension of the left knee against strong resistance. There was a well healed surgical star and absence of patella along with atrophy observed on the left knee. There was no evidence of edema, effusion, tenderness, redness, and heat. Positive anterior drawer sign by 2mm was observed. Varus and valgus signs were stable. The size of the medial and lateral collateral ligaments were about the same as that of the right knee. There was no significant breakdown or unusual wear pattern of shoes that would indicate prolonged abnormal weight-bearing, but there was mild right side favoring when he walked down a hallway or climbed up or comes down from a flight of stairs. The examiner noted the presence of pain as noted above, and there were no signs of fatigue weakness, lack of endurance, or incoordination. There were no other signs except those reported previously. The Veteran did not have ankylosis. Diagnostic imaging results showed there was no evidence for fractures or dislocations, hardware failure, nor abnormal lucencies demonstrated. The examiner found the Veteran had limitation of full extension and full flexion; anterior cruciate laxity and mild painful range of motion at extreme flexion; without additional limitation of joint function after repeated knee flexion and extension; without weakness, fatiguability, and incoordination noted on examination. A September 2009 VA treatment record indicates the Veteran reported he could not walk more than 50 to 100 feet without pain. The Veteran had continued slow improvement, could not straighten his knee, and had anterior pain with clicking and walking. He did “fine” on a bicycle. In a November 2009 VA Form 21-4138 Statement in Support of Claim, the Veteran stated that for the past 35 years, he had to change the way he walked to protect his left knee; and that he puts all of his weight on his right knee due to left knee pain. He stated that his treating physician stated that his left knee had to be manipulated to straighten, and that it was the “best it was going to be.” The Veteran reported he had numerous surgeries, was unable to stand for a while, and was unable to walk more than 30 or 50 feet before needing to stop. A February 2010 VA treatment record indicates the Veteran had significant pain, intermittent swelling, still with extension deficit, gait disturbance, and inability to walk extended distances. There was no erythremia, purulence, or effusion. Range of motion measurements were 15 to 120 degrees. The Veteran had a stable varus, valgus, with some laxity due to anterior stress. Of record are February 2014 lay statements submitted by the Veteran’s brother and his brother-in-law. In those statements, they state that the Veteran experienced severe pain every morning; constant pain; inability to sit for a meal; inability to lift or walk; interference with focus and concentration due to pain; inability to drive due to interference with sitting for prolonged periods; inability to sit for more than 20 to 30 minutes; not being able to work due to pain; and a decreased quality of life. At a March 2014 VA examination, the Veteran reported that he had six surgeries on his left knee, with a total knee replacement in December 2007. His symptoms had improved with his knee replacement. The Veteran complained of sharp, jabbing pain that was intermittent and exacerbated by prolonged standing and ambulation. He had stiffness with prolonged sitting; swelling; denied locking and catching; and feeling unstable. He used a bilateral knee brace and cane to ambulate. The Veteran denied flare-ups of the knee. Range of motion measurements were as follows: flexion was to 100 degrees, without objective evidence of painful motion; and extension was to 0 degrees, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing, and there was no additional limitation of range of motion following repetitive-use testing. Contributing factors of disability included less movement than normal; weakened movement; and deformity. The Veteran had tenderness or pain to palpation of the joint line or soft tissues. Muscle strength testing showed normal strength in flexion, and active movement against some resistance in knee extension. Joint stability testing showed 1+ in medial-lateral instability. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have, or ever had “shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did not have any meniscal condition or surgical procedure for a meniscal condition of the left knee. The Veteran had a left knee TKA, and his residuals were “intermediate degrees of residual weakness, pain, or limitation of motion.” The Veteran had arthroscopic surgery, and residuals included weakness with extension from his patellectomy. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran endorsed the regular use of braces and cane as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran’s left knee impacted his ability to work due to having to work a job that was mostly sedentary, with minimal to moderate walking. The examiner noted that the majority of his complaints are likely sequela that occur after his patellectomy combined with his left knee TKA, i.e. weakness; and that he required the use of bilateral knee braces and a cane for ambulation in the community. The examiner opined that he was able to work, however, he would have to be in a position that was sedentary to light duty, with mild to moderate walking. In a February 2014 VA Form 21-4138 Statement in Support of Claim, the Veteran reported his left knee symptoms included overcompensation to his right knee; unable to work since 1997, when he applied for Social Security Administration (SSA) disability benefits; and that both knees prevent him from working. He stated that he took pain medication every day, and the pain in both knees was constant. At a June 2016 VA examination, the Veteran reported he had pain on occasion, but was generally happy with his knee. He stated he wore a brace when he mowed the lawn; had some pain when walking more than half a mile; the left knee gave out on occasion, the last time was three days prior; and received SSA disability benefits due to his back, hips, and knees. The Veteran denied flare-ups of the knee. He reported functional loss or functional impairment that was described as limited motion, walking, and no kneeling. Range of motion measurements were as follows: flexion was to 110 degrees; and extension was to 0 degrees. Range of motion itself did not contribute to a functional loss. Pain was noted on extension but did not contribute to a functional loss. There was no evidence of pain with weight-bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing, and there was no additional functional loss or range of motion after three repetitions. The Veteran was not examined immediately after repetitive-use over time, and it was not possible to say without mere speculation because there was no conceptual or empirical basis for making such determination without directly observing function under such conditions whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive-use over a period of time. Additional factors contributing to the disability included less movement than normal; weakened movement; and deformity. Muscle strength testing showed normal strength in flexion and active movement against some resistance in extension. The Veteran did not have muscle atrophy. He did not have ankylosis of the left knee. Joint stability testing showed instability. There was no history of recurrent effusion. The Veteran did not have, or ever had “shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did not have any meniscal condition or surgical procedure for a meniscal condition of the left knee. The Veteran had a left knee TKA, and his residuals were “intermediate degrees of residual weakness, pain, or limitation of motion.” The Veteran had arthroscopic surgery, and residuals included weakness on extension. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran endorsed the occasional use of a brace and regular use of a cane as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran’s left knee impacted his ability to work due to limited walking, climbing, and no kneeling; remarked that the left knee could present functional impairments that may impact physical employment involving kneeling, prolonged standing, and walking but may be remedied with reasonable accommodation; and found sedentary employment would not be impacted. In a March 2018 lay statement, the Veteran reported that he continued to rely on crutches following his surgery; had constant pain that fluctuated in severity; pain that would often spike and become excruciating without warning, interrupting his sleep at night; movement and weight-bearing exacerbated his knee pain; his knee giving out a few times a week, and resulting in falls on occasion; relying on a cane to walk at all times; using a knee brace if he anticipated walking; pain with bending; stiffness that interfered with his ability to sit for prolonged periods; walking only a quarter mile before requiring rest; weakness when walking; shifting weight when standing; unable to twist or pivot on the knee; having to be careful due to the risk of severe pain; and an inability to secure and follow substantially gainful employment. At a July 2019 VA examination, the Veteran reported pain on the center front of the knee at the inner aspect, which was sharp in nature, along with stiffness. He reported he could walk about a quarter of a mile before he had to sit down, and could stand for about 10 to 15 minutes on average. The Veteran had problems bending at the left knee due to extreme pain. There was no knee effusions noted. The Veteran did not have kneecap presently, as it was surgically removed. There was no lateral instability. He did note anterior displacement of the left knee area. The Veteran had difficulties with or could not due the physical aspects of labor, such as prolonged standing, prolonged walking, running, climbing, bending, or stooping. The examiner noted there would be no issues with the sedentary aspects of employment, other than the Veteran taking periodic breaks from sitting. The Veteran endorsed flare-ups of the knee that were described as bad days requiring staying off his feet, keeping left knee elevated, and using ice; more pain than usual; inability to do much standing or walking during flare-ups; occurring three times a week, lasting minutes to hours; pain intermittent, occurring every few minutes; and pain that would prevent him from doing physical or sedentary aspects of work during flare-ups. Range of motion measurements were as follows: flexion as to 85 degrees; and extension was to 40 degrees. Range of motion itself did contribute to a functional loss due to difficulty in knee bending. Pain was not noted on flexion and extension. There was no evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, and there was not additional functional loss or range of motion after three repetitions. The Veteran was not examined immediately after repetitive-use over time, and the examination was neither medically consistent or inconsistent with his statements describing a functional loss with repetitive-use over time. Pain and weakness significantly limited functional ability with repetitive-use over a period of time, and the examiner was able to describe in terms of range of motion as follows: flexion to 60 degrees; extension to 40 degrees. The examination was not conducted during a flare-up, and the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. Pain and lack of endurance significantly limited functional ability with flare-ups, and the examiner was able to describe in terms of range of motion as follows: flexion was to 75 degrees, and extension was to 0 degrees. Additional contributing factors to the disability included interference with standing. Muscle strength testing was normal. There was no muscle atrophy. The Veteran did not have ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing showed joint instability. The Veteran did not have, or ever had “shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran had left meniscal tear that was addressed surgically and had resolved. Surgical residuals of the left TKA included intermediate degrees of residual weakness, pain or limitation of motion; and pain on extension. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran denied the use of assistive devices as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran’s left knee TKA impacted his ability to work as described previously. The examiner remarked the Veteran was not able to fully extend his left leg at the knee due to the pain he was having at the time; and kept his left leg partially flexed at 40 degrees from complete extension. The left leg could be moved to full extension, with some effort, and there was no mechanical obstruction. There was no evidence of pain on passive range of motion nor when the joint was used in nonweight-bearing. In a September 2020 lay statement, the Veteran stated that he had not worked since 1997 due to interference of his left knee. Specifically, he previously worked as a repairman for replacing and repairing windshields, and his left knee interfered with lifting glass weighing around 25 pounds; and that he did not have left knee strength or stability to perform his job. He stated that his surgical residuals remained severe from 2009 to the present and described severe pain that is unbearable; difficulty concentrating or focusing on tasks; flare-ups occurring four times a week, lasting in 15 minutes to five hours in duration; flare-ups occurring randomly, and exacerbated by any physical activity, and resulting in increased stiffness and pain to an 8 out of 10 pain intensity; feeling like his knee replacement will pop out of his knee; and being forced to lay down and elevate his knee. He reported it seemed impossible to sleep during flare-ups, unable to perform physical chores or tasks that require prolonged concentration. The Veteran reported that he continued to suffer from significant weakness and instability in his left knee, and has to make a consistent and conscious effort to keep weight off of his left knee. He endorsed the use of a cane whenever leaving the house, and regularly wearing a brace on his left knee. He stated that even with the use of a cane and brace, he still endured frequent falls due to instability. The Veteran reported that his significant limitations included pain, weakness, and inability to stand for longer than 45 minutes; pain aggravated by walking more than 50 yards or a quarter mile before symptoms become intolerable; pain and stiffness aggravated by remaining in one stationary position for extended periods of time; inability to sit for longer than 20 or 30 minutes at a time before needing to stand and stretch; pain and instability limiting ability to lift heavy objects, and inability to safely lift more than 20 pounds with aggravating his pain; chronic sleep impairment due to the severity of his pain and requiring changing positions, and resulting in chronic fatigue the following day. The Veteran stated he believed the severity of his left knee condition rendered him unable to obtain employment of any kind beginning in 2009. Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities. However, there is no indication from the treatment notes of record that the Veteran has reported knee symptoms or range of motion measurements that are worse than those noted above. Based on the foregoing, the Board finds that a rating in excess of 30 percent prior to July 10, 2019, and in excess of 40 percent thereafter for left knee TKA is not warranted. As noted above, range of motion testing was performed during VA examinations in February 2009, March 2014, June 2016, and July 2019; and a February 2010 VA treatment record. Prior to July 10, 2019, the Board finds that a rating in excess of 30 percent for left knee TKA is not warranted. As noted above, range of motion testing was performed and showed that range of motion was, at worst, 100 degrees of flexion and zero degrees of extension. The reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. In this regard, the Veteran denied flare-ups at February 2009, March 2014, and June 2016 VA examinations. Additionally, the VA examiners found that the Veteran did not experience additional functional loss following repetitive-use, nor was the Veteran shown to be additionally limited by pain on motion. Additionally, prior to July 10, 2019, the Veteran’s left knee TKA residuals were shown to manifest with “intermediate degrees of residual weakness, pain, or limitation of motion,” and weakness with extension. See e.g. March 2014 VA examination report. Notably, the March 2014 VA examiner noted that the Veteran had stiffness with prolonged sitting; swelling; denied locking and catching; and felt unstable; and the Veteran complained of sharp, jabbing pain that was intermittent and exacerbated by prolonged standing and ambulation. Additionally, at his June 2016 VA examination, the examiner noted the Veteran complained of pain, difficulty walking more than half a mile, knee giving out, and pain; and the Veteran reported he was happy with his knee. At his February 2009 VA examination, the Veteran reported complaints of weakness, fatigability, difficulty walking more than 50 yards, pain, burning, clicking, stiffness, inability to knee, and difficulty lifting. However, the Veteran also noted that his “bone on bone” pain prior to the surgery had resolved, and that he was able to lift his 20 pound dog and do yardwork at home. Therefore, the Board finds that prior to July 10, 2019, the Veteran’s left knee TKA symptoms most closely approximated intermediate degrees of residual weakness, pain, or limitation of motion; and without severe painful motion or weakness in the affected extremity. In this regard, the Veteran denied flare-ups, he was not shown to be additionally limited by pain or motion, and reported that he was happy with his knee. Although he reported pain, stiffness, burning, and interference with walking, sitting, and kneeling, the VA examiners found the Veteran’s left knee TKA residuals did not result in severe painful motion or weakness in the extremity. Additionally, the VA examination reports prior to July 10, 2019 do not show the Veteran had weakness in his left leg. While the Veteran did exhibit some limitation of extension and flexion at his VA examination and on physical examination as indicated in his VA treatment records, such symptomatology does not warrant an evaluation greater than 30 percent. Even when considering pain and functional loss, the Veteran’s extension is not more closely described as being limited to 30 degrees. Therefore, the criteria for a higher rating under Diagnostic Code 5261 are not met. Similarly, even when considering pain and functional loss, the Veteran’s flexion is not more closely described as being limited to 15 degrees. Therefore, the criteria for a higher rating under Diagnostic Code 5260 are not met. The Board acknowledges that the February 2009, March 2014, and June 2016 VA examiner was able to provide an opinion regarding additional functional impairment during flare-ups and following repetition. However, the Board finds that all information required for rating purposes was provided. In this regard, the Board notes that the examiners clearly noted that the Veteran specifically reported pain, locking, burning pain, and the reported interference with daily activities of the joint during a flare-up or following repetition. There is no other indication from the record, to include the Veteran’s own statements, that he experiences additional decreased range of motion, weakness, or incoordination during flare-ups or following repeated use other than shown above. Notably, the Veteran denied flare-ups at these examinations. As the Veteran has not endorsed those symptoms, the Board finds the examinations of record to be adequate for rating purposes. See Correia v. McDonald, 28 Vet. App. 158 (2016); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). Based on the foregoing, the Board finds the evidence, to include the Veteran’s reported symptoms as considered in the VA examination reports and treatment records, does not demonstrate symptoms that rise to the level as required for a higher rating under the diagnostic criteria. While the Veteran has essentially stated that he has severe symptoms in his left knee, he has not described a range of motion less than that found on examinations. In this regard, he reported that he experienced symptoms that included chronic pain, stiffness and weakness. The Veteran’s statements do not show the requisite limitation of motion necessary for higher or separate ratings. Treatment records do not show greater limitations of motion than the above examination findings. Given the above, even when considering the impact of left knee TKA on physical activities, higher or separate ratings are not warranted based on limitation of motion. 3 8 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. Accordingly, the Board finds that a rating in excess of 30 percent prior to July 10, 2019 for left knee TKA is not warranted. Beginning in July 10, 2019, the Board finds that a rating in excess of 40 percent for left knee TKA Is not warranted. As noted above, range of motion testing was performed during a July 2019 VA examination, and showed that range of motion was, at worst, 60 degrees of flexion, and 40 degrees of extension. The report does not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. Specifically, the Veteran reported flare-ups of his left knee, extreme pain, difficulty with physical activity, and requiring medication and rest. However, the VA examiner found the Veteran did not experience additional functional loss following repetitive-use, nor was the Veteran shown to be additionally limited by pain on motion. Moreover, the examiner found that functional limitation with repetitive-use over a period of time and flare-ups could be described in terms of range of motion as noted above. The July 2019 examiner also found additional contributing factors included interference with standing, and found muscle strength testing was normal. The left leg could be moved to full extension, with some effort, and there was no mechanical obstruction. There was no evidence of pain on passive range of motion nor when the joint was used in nonweight-bearing. The July 2019 VA examiner found the Veteran did not have weakness in his left leg. Moreover, as the Veteran has retained motion in his knee throughout the period on appeal, by definition he does not have ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). While the Veteran did exhibit some limitation of extension and flexion at his VA examination, such symptomatology does not warrant an evaluation greater than 40 percent. Even when considering pain and functional loss, the Veteran’s extension is not more closely described as being limited to 45 degrees. Therefore, the criteria for a higher rating under Diagnostic Code 5261 are not met. The Board has considered the applicability of other potential diagnostic codes. As the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under 5256, 5262, or 5263, respectively, for his left knee TKA. As noted above, the Veteran is already in receipt of a separate rating for removal of his left knee instability under Diagnostic Code 5257 and left knee scar. The Board acknowledges the Veteran’s statements that his left knee TKA is more severe than evaluated. Specifically, the Veteran reported in February 2010 that he had significant pain, and the February 2014 lay statements submitted in support of his claim reporting the Veteran had severe pain every morning; constant pain; inability to sit for a meal; inability to lift or walk; interference with focus and concentration due to pain; inability to drive due to interference with sitting for prolonged periods; inability to sit for more than 20 to 30 minutes; not being able to work due to pain; and a decreased quality of life. Additionally, the Board notes the September 2020 lay statement submitted by the Veteran that his left knee symptoms prevented him from substantially following gainful employment, resulted in severe pain that was unbearable, difficulty concentrating or focusing on tasks, flare-ups, interference with physical activity and sleep, significant weakness in his left knee, and pain that was severe and became intolerable after walking a short distance. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, supra. The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for ratings in excess of 30 percent prior to July 10, 2019 and in excess of 40 percent thereafter have been met. The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his left knee. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board acknowledges the Veteran’s prior representative’s and his current attorney’s assertions that the left knee TKA warrants a higher rating because the VA examinations of record did not adequately consider the Veteran’s reports and severity of his left knee symptoms. Specifically, as noted above, the Veteran’s attorney asserts that the Veteran’s inability to walk, sit, or stand for prolonged periods and/or distances, sharp or stabbing pain, inability to sit for more than 20 or 30 minutes, inability to stand or walk for long periods of time, constant distracting pain, use of knee brace and cane in order to ambulate, inability to straighten his knee; inability to walk for prolonged periods; atrophy of leg muscles; pain; interference with weight-bearing; sharp pain; severe pain, and weakness warrant a 60 percent rating. However, as noted above, the Board notes that the examiners clearly noted that the Veteran specifically reported pain, locking, weakness, interference with physical activities, and burning pain of the joint during a flare-up or following repetition. There is no other indication from the record, to include the Veteran’s own statements, that he experiences additional decreased range of motion, weakness, or incoordination during flare-ups or following repeated use other than shown above. Additionally, in consideration with the reported symptoms by the Veteran, the VA examiners found that the Veteran’s left knee TKA symptoms manifested in worst, intermediate degrees of residual weakness, pain, or limitation of motion. Therefore, these arguments are without merit. Additionally, the Board acknowledges the July 2018 Joint Motion for Remand. Specifically, the Board notes the Veteran complained of sharp or stabbing pain, inability to sit for more than 20 to 30 minutes, inability to stand or walk for prolonged periods, and constant distracting pain that could warrant a higher rating. However, as noted above, the Board finds the Veteran has consistently reported such symptoms, to include during the various VA examinations of record. At his February 2009 VA examination, the Veteran reported pain when walking more than 50 yards, weakness, burning, and pain. However, he could lift his 20 pound dog and do yard work. At his March 2014 VA examination, the Veteran reported sharp and jabbing pain, stiffness with prolonged sitting, and feeling unstable. However, the Veteran was not shown to have weakness, and there was no objective evidence of painful motion. At his June 2016 VA examination, the Veteran reported symptoms that limited his motion, walking, prevented kneeling, and was not shown to have muscle weakness. In a March 2018 statement, the Veteran himself indicated that the severity of his knee pain fluctuated, and interfered with his ability to walk, stand, or bear weight. At his July 2019 VA examination, the Veteran reported severe pain, extreme pain that prevented bending, and difficulties with physical activities that required breaks and rest. However, as discussed above, even in consideration with his reported symptoms, the medical evidence shows that the Veteran’s left knee TKA symptoms were manifested by, at worst, intermediate degrees of residual weakness, pain, or limitation of motion. While the Veteran has clearly complained of, and offered buddy statements further establishing, left knee pain and weakness of varying and fluctuating severity, the Board finds that the objective evidence does not indicate that the Veteran’s symptomatology most closely approximates chronic residuals consisting of “severe” pain and/or weakness. Therefore, these arguments are without merits. The Board has considered whether additional staged rating under Hart, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning additional staged ratings is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Board notes that the issue of consideration of an extraschedular rating was raised by the Veteran’s representative in a November 2013 Appellate Brief. Specifically, the Veteran’s representative stated, generally, that an extraschedular consideration was reasonably raised by the record; and that the Board is obligated to “seek out all issues that are reasonably raised from a liberal reading of the documents or oral testimony submitted.” Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. When a claimant’s knee symptoms result in pain or limited range of motion, those effects are specifically contemplated by the schedular rating criteria. Specifically, the Veteran complained of severe pain; inability to knee; difficulty walking, standing, driving, or sitting for prolonged periods; and limited range of motion. However, the specific diagnostic criteria adequately address the whole of the Veteran’s symptoms referable to his left knee, as well as the functional impairments resulting from symptoms related to such disabilities, to include: pain, stiffness, decreased motion, difficulty in sitting or standing for long periods of time, and other regular physical activity involving use of the knee as well as intermittent flare-ups with activity such as bending. Moreover, a wide range of signs and symptoms are contemplated in the applicable rating criteria for the Veteran’s left knee TKA. His left knee TKA requires application of the holding in Deluca, supra, and Mitchell, supra, which, in turn, requires consideration of 38 C.F.R. §§ 4.40 and 4.45. 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Also, 38 C.F.R. § 4.59 requires consideration of such matters as unstable or mal-aligned joints, and crepitation as well as any painful arthritic motion in active and passive motion and in weight-bearing and nonweight-bearing. As such, the Veteran’s current rating contemplates his functional loss, to include limited range of motion, as a result of his left knee TKA symptomatology. Additionally, as noted above, the Veteran is already in receipt of a separate rating for his left knee instability and surgical scar. As such, the Veteran’s current rating contemplates his functional loss, to include pain and numbness as a result of his left knee TKA. With regard to the Veteran’s report that his left knee TKA manifests in difficulty sitting more than 20 to 30 minutes, disturbance of concentration and focus, and interference with sleep, the Board acknowledges that the rating schedule does not specifically address such symptom in connection with the Diagnostic Code under which such disabilities are rated. However, in Doucette v. Shulkin, the Court made clear that a Diagnostic Code need not list every word or type of symptom to contemplate the functional loss associated with such disability. In such case, the Court found that difficulty hearing sounds in crowds, televisions, or on telephones is not explicitly listed in the Diagnostic Code for evaluating hearing loss, but are nonetheless contemplated therein because they are the actual effects of hearing loss in daily life. Id., 28 Vet. App. 366 (2017). Here, although in the context of hearing loss, the Doucette decision reflects the Court’s acknowledgement that functional effects associated with a service-connected disability need not be explicitly listed in a Diagnostic Code in order to show that such are indeed contemplated therein. In the instant case, the Veteran has reported that his left knee pain interferes with concentration, focus, sitting, and sleep. As previously discussed, pain associated with the Veteran’s left knee is explicitly considered in the Diagnostic Code under which such disability is rated. Further, in applying the principles in Doucette, the Board finds that the natural consequences of pain may include distraction and interference with sleep. Therefore, such functional effects are indeed contemplated in the Diagnostic Codes under which such service-connected disabilities are evaluated. Overall, given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities and the broad inclusive ratings assigned, the Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture associated with his left knee TKA. See, e.g., 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a. Therefore, the Board finds that the rating criteria reasonably describe the Veteran’s disability level and symptomatology of his service-connected left knee TKA. As such, the Board finds that the rating schedules are adequate to evaluate the Veteran’s disability picture for such disorders. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In view of the circumstances as a whole, the Board finds that the rating schedule has been adequate, even in regard to the combined effect of the Veteran’s service-connected disability. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 30 percent prior to July 10, 2019, and a rating higher than 40 percent thereafter for left knee TKA. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Entitlement to a TDIU The Veteran asserts that he is entitled to a TDIU as a result of his left knee. Specifically, the Veteran stated that he could not work, had difficulty lifting heavy glass as required by his last job, took pain medication regularly, had pain that interfered with concentration and focus, disturbed sleep resulting in daytime fatigue, inability to strengthen his knee, inability to walk for any length of time, sharp pain, clicking, and interference with weight-bearing. See VA Form 21-4138 Statement in Support of Claim, November 9, 2009; see VA Form 9, May 26, 2010; see VA Form 21-4138 Statement in Support of Claim, February 5, 2014; see Affidavit, March 6, 2018; see Correspondence, September 17, 2020. Additionally, the Veteran’s attorney asserts that the Veteran’s left knee disability should be rated as 60 percent disabling, resulting in a schedular TDIU analysis. See Third Party Correspondence, July 5, 2018; see also Third Party Correspondence, July 3, 2019; see also Third Party Correspondence, November 12, 2019; see also Third Party Correspondence, January 27, 2021. In the alternative, the attorney argues that should a 60 percent rating not be assigned for his left knee, the Board need not refer the issue of an extraschedular TDIU to the Director of Compensation Service. Id. In that regard, the attorney notes the Veteran has consistently asserted that he has been unable to secure and follow substantially gainful employment since 1997 due to his left knee disability; and that the Veteran’s examining physician noted that his left knee could present functional impairments that may impact physical employment involving kneeling, prolonged standing, and walking, that could be remedied with reasonable accommodation; and that sedentary employment would not be impacted. Id. However, the attorney argues that the Veteran’s brother-in-law’s February 2014 lay statements were not taken into proper consideration, noting that his sedentary employment may be impacted due to interference with sitting. Id. Moreover, the attorney points to the vocational assessment submitted in support of his claim for entitlement to a TDIU finding that the Veteran cannot perform work that would produce income that is other than marginal. Id. In the January 2021 Third Party Correspondence, the Board notes the arguments of the Veteran’s attorney that the prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled. The Board is aware of the recent Court decision in Smiddy v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 994 (Vet. App. May 28, 2020), which held that when the Board denies entitlement to an extraschedular rating under 38 C.F.R. § 3.321 (b), it must provide adequate reasons and bases for any factual determination that deviates from its earlier decision to remand the claim for referral to the Director. Initially, the Board notes that the Board has not remanded the issue of an entitlement to an extraschedular TDIU to the Director of Compensation Service, nor made any explicit findings of fact relating to the Thun factors. Of note, the issue of entitlement to a TDIU was remanded as intertwined with the issue of an increased rating for the left knee. In Smiddy, the Court cited its earlier decision in Ray v. Wilkie, 31 Vet. App. 58 (2019), suggesting that “the certitude or equivocality of the Board’s language in the referral decision could affect the amount of explanation required where there is deviation at the award stage.” Smiddy, 2020 U.S. App. Vet. Claims LEXIS 994 at *18, citing Ray, 31 Vet. App. at 67. In this case, the Board’s prior remands did not contain any language regarding the Thun factors. The Board did not find with certainty that an extraschedular evaluation was warranted or even that the rating criteria did not contemplate the Veteran’s symptoms, but merely indicated further consideration of that question was needed in conjunction with the claim for an increased rating for his left knee. Accordingly, the Veteran’s attorney’s argument that an extraschedular TDIU can be granted in the first instance by the Board without referral to the Director of Compensation Service without merit. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 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 or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). 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). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the instant case, the Veteran is service-connected for left knee TKA rated as 30 percent disabling from February 1, 2009, and 40 percent beginning July 10, 2019; left knee instability associated with left knee TKA rated as 20 percent disabling from February 23, 2009; and left knee surgical scar associated with left knee TKA rated as noncompensable beginning February 23, 2009. The Veteran’s combined is 30 percent from February 1, 2009 to February 23, 2009; 40 percent from February 23, 2009 to July 10, 2019; and 50 percent beginning July 10, 2019. Thus, the schedular criteria for a TDIU have not been met at any time during the period on appeal. However, when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to appropriate VA officials for consideration of assignment of a TDIU rating. 38 C.F.R. § 4.16(b). However, the Board recognizes that it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the TDIU schedular requirements, rating boards will submit the case to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). After a thorough review of the evidence of record, the Board finds that remand is warranted for referral to the Director of the Compensation Service. In relevant part, the record suggests that the Veteran had difficulty sitting, standing, walking, lifting, concentrating, focusing, and sleeping due to his service-connected left knee TKA. Specifically, the Veteran contends that he was unable to work because he could not perform the functions of his job, that included lifting heavy glass, and thus the Veteran’s representative argued that the Veteran was incapable of any type of gainful employment at this time. Additionally, in a June 2018 vocational assessment by J.C., she opined the Veteran was unable to secure and follow substantially gainful employment as a result of his service-connected condition and the combinations of his limitations since at least 1997. Specifically, J.C. noted the Veteran’s left knee symptoms that included constant pain exacerbated by prolonged sitting, standing, walking, weakness, stiffness, instability, fatigability, limping gait, difficult with sitting down and rising to stand, and chronic drowsiness. Accordingly, in light of these limitations, the AOJ is instructed to refer the TDIU claim to the Director, Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: 1. The AOJ should submit the claim for a TDIU to the Director of Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). 2. Thereafter, the claim should be readjudicated. If the claim remains denied, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and provided with the appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. SONJA S. AN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.