Citation Nr: 21016151 Decision Date: 03/20/21 Archive Date: 03/20/21 DOCKET NO. 17-55 723 DATE: March 20, 2021 ORDER Entitlement to a rating higher than 10 percent for left knee osteoarthritis, patellofemoral pain and status-post meniscectomy with residual scars (left knee disability) is denied. Entitlement to a separate 10 percent rating for left knee instability prior to February 7, 2021, and 20 percent, thereafter, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran’s left knee disability has manifested by, at worst, pain, extension to 0 degrees, and flexion to 75 degrees. He experienced mild instability throughout the appeal period. He was prescribed a walker and has also intermittently used a left knee brace for ambulation. 2. The Veteran’s service-connected disabilities alone do not render him unable to secure and follow substantially gainful employment. Referral for extraschedular consideration is not warranted prior to February 7, 2021, and TDIU is not warranted at any point during the appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 10 percent for left knee osteoarthritis, patellofemoral pain and status-post meniscectomy with residual scars, based on loss of motion, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 5259-5260, 7804. 2. The criteria for a separate 10 percent rating for left knee instability prior to February 7, 2021, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2019). 3. As of February 7, 2021, the criteria for a 20 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2021). 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from August 1979 to March 1987. He testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in April 2019. A transcript of the hearing is of record. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a rating higher than 10 percent for a left knee disability. The Veteran’s claim for an increased rating for his left knee was previously denied by a January 2020 decision. He appealed that decision to the Court of Appeals for Veterans Claims (CAVC). By an October 2020 Order, CAVC granted a joint motion for partial remand (JMPR). In the October 2020 JMPR, the parties did not state that the Board’s findings as it related to the Veteran’s left knee limitation of motion were inadequate. Instead, the parties only agreed that the Board erred by not providing an adequate statement of reasons or bases addressing the Veteran’s lay reports regarding his left knee occasionally locking/catching while walking. The JMPR directed the Board to address whether a separate rating for left knee instability is warranted. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The Veteran contends that his left knee disability warrants a rating higher than 10 percent. He is currently assigned a 10 percent rating for his left knee under hyphenated Diagnostic Code 5259-5260. See 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis that is 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. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. 38 C.F.R. § 4.71a. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5257 rates on the basis of recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Prior to February 7, 2021, slight recurrent subluxation or lateral instability of the knee is to be rated as 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is to be rated as 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is to be rated as a maximum 30 percent disabling. Id. The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 5258 provides for a 20 percent evaluation on the basis of dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. This is the only available evaluation under Diagnostic Code 5258. A 10 percent evaluation is warranted for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. This is the only available evaluation under Diagnostic Code 5259. The appropriate diagnostic codes pertaining to limitation of motion of the knee are DCs 5260 and 5261. 38 C.F.R. § 4.71a. Under DC 5260, a noncompensable (0 percent) rating is assigned for limitation of flexion of the leg to 60 degrees. A 10 percent rating is warranted for limitation of flexion of the leg to 45 degrees. A 20 percent rating is warranted for limitation of flexion of the leg to 30 degrees. A 30 percent rating is warranted for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. DC 5261 provides the criteria for limitation of extension of the leg. Under DC 5261, a noncompensable (0 percent) rating is assigned for limitation of extension of the leg to 5 degrees. A 10 percent rating is assigned for limitation of extension of the leg to 10 degrees. A 20 percent rating is assigned for limitation of extension of the leg to 15 degrees. A 30 percent rating is warranted for limitation of extension of the leg to 20 degrees. 38 C.F.R. § 4.71a. Normal range of motion in the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. Diagnostic Code 5260, limitation of flexion, was not amended. However, the amendments addressed Diagnostic Code 5257, which contemplates recurrent subluxation or instability. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. As it relates to the current issue on appeal, as of February 7, 2021, under the amended criteria, recurrent subluxation and lateral instability of the knee warrants a 30 percent rating for unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribed both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for 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 (e.g., cane(s), crutch(es), walker) for ambulation; OR an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Alternatively, if there is a finding of patellar instability, a 30 percent rating is warranted for 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. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note (1) to diagnostic code 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states that 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). The Veteran’s March 2015 VA treatment records reflect mild joint effusion in the left knee with no varus/valgus laxity. He had flexion to 80 degrees and “not quite full extension.” The Veteran’s left knee was examined in May 2015. Diagnoses of osteoarthritis and patellofemoral pain syndrome were noted. On range of motion testing, he had extension to 0 degrees and flexion to 110 degrees. Although the examiner noted “pain causes functional loss” on the examination, the examiner later stated that pain failed to significantly limit the Veteran’s functional ability with repeated use over time. There was no evidence of ankylosis, recurrent subluxation, or joint instability. However, the Veteran had a history of recurrent effusion. The Veteran had a meniscectomy in 1975, and as a result, had three left knee scars. The scars were characterized as non-painful, stable, and measuring a total area less than 6 square inches. In March 2016, the Veteran reported for VA treatment with his left knee swollen to twice the normal size. In June 2016, the Veteran’s left knee was examined by VA. On range of motion testing, he had extension to 0 degrees and flexion to 110 degrees. Degenerative arthritis was noted. Upon testing of repeated use of the left knee over time, the examiner noted pain, fatigue, and lack of endurance significantly limited functional ability. However, the examiner did not estimate the loss in terms of range of motion. There was no evidence of ankylosis, recurrent subluxation, or joint instability. The examiner again noted a history of recurrent effusion. Four arthroscopic portal non-tender scars were noted, each covering a 1-centimeter area of the left knee, as well as a 7 centimeter by 0.8-centimeter scar. All scars were characterized as non-painful and stable. In August 2016, the Veteran complained of pain with motion and occasional catching and locking in this left knee while walking. He endorsed his knee joint swelling on occasion without redness or warmth. The VA provider found no distal numbness, tingling, or weakness in the knee. A September 2016 MRI reflected severe tricompartmental osteoarthritis in the lateral femorotibial compartment with a lesser degree of cartilage loss in the medial femorotibial patellofemoral compartments. The Veteran’s left knee scars were examined by VA in March 2017 and the examiner determined the scars were non-painful and stable. An October 2017 radiology report of the left knee shows no acute fracture or dislocation but reflects moderate to severe tricompartmental osteoarthritis. In November 2017, the Veteran was admitted for left knee pain and swelling due to pseudogout. The Veteran’s most recent VA examination was in June 2018. On examination, he endorsed flare-ups in the form of sharp stabbing pain. He did not report additional loss of motion. Initial rating of motion testing showed extension to 0 degrees and flexion to 95 degrees. The examiner noted that pain, fatigue, and weakness significantly limited the Veteran’s functional ability with repeated use over time and during flare-ups. The examiner estimated the additional loss of motion would be extension to 0 degrees and flexion to 75 degrees. Disturbance of locomotion was a symptom which contributed to the Veteran’s disability. No ankylosis, locking, or instability of the knee was found. The Veteran’s left knee scars were noted and again were characterized as non-painful, stable and measuring a total area of less than 6 square inches. Regarding the Veteran’s medical history, the examiner noted: The date of onset of the symptoms is 1976. The claimant states the above condition began with left knee injury after a motorcycle accident in 1/1976. He tore a ligament (believes it was lateral collateral ligament). Was on Navy wrestling team and this worsened his left knee. He had second left knee surgery in 1968 (arthroscopic debridement of left knee). He is being considered for a total knee surgery. The examination report noted that the Veteran used a left knee brace as well as a walker. The Veteran testified at a hearing before the undersigned in April 2019, and stated he sleeps with his legs elevated every night and has issues finding a comfortable sleep position due to his left knee pain. He testified his knee pain is constant and he always uses a walker to ambulate. He further testified that his left knee occasionally “give[s] out . . . where [he has] to catch [himself].” See April 2019 Board Hearing Transcript, pg. 6. He made no mention of using a left knee brace. After having considered all of the evidence of record, the Board finds that a rating higher than 10 percent for the Veteran’s left knee limitation of motion is not warranted. However, the Board very generously resolves reasonable doubt in favor of the Veteran in findings that a separate 10 percent rating for left knee instability is warranted prior to February 7, 2021, and a 20 percent rating is warranted as of February 7, 2021. As noted above, the Board cannot apply the new regulations prior to the effective date of such. The new regulations are more favorable to the Veteran. Regarding the Veteran’s left knee limitation of motion rating under hyphenated Diagnostic Code 5260-5620, the Board acknowledges his lay reports of symptoms of pain, and that he has moderate to severe tricompartmental osteoarthritis in the left knee. However, even considering these lay reports of symptoms and noted functional loss after repetitive use or during flare-ups, the degree of additional limitation reflected by his lay statements would not result in limitation of motion more nearly approximating limitation of flexion to 45 degrees or limitation of extension to 10 degrees of the left knee to warrant a compensable disability rating under the appropriate limitation of motion codes for the knee. In order to warrant a higher 20 percent rating under DC 5003, the evidence must establish that the Veteran’s left knee osteoarthritis, causes occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board again finds that the evidence of record does not establish that the Veteran’s left knee degenerative arthritis causes occasional incapacitating exacerbations, to warrant a higher 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Throughout the appeal, the Veteran has reported pain in his left knee. However, at no time during the appeal has he reported that he has been incapacitated by his left knee. The voluminous amount of medical evidence also does not document such occurrences. Although in November 2017 the Veteran was admitted to the hospital for a swollen left knee, this was attributed to gout and not his osteoarthritis. This evidence does not support occasional incapacitating exacerbations of the knee to warrant a higher, 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this instance, the Veteran has stated that his left knee will occasionally give out. Separate compensable ratings may be assigned for a knee disorder if there is both instability under DC 5257, and arthritis that causes limitation of motion under DCs 5260 or 5261. In VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997). As noted above, the JMPR directed the Board to further discuss whether a separate rating is warranted for left knee instability in light of the Veteran’s reports. Specifically, the Board previously noted that no VA examiner found that the Veteran experienced recurrent subluxation or lateral instability in the left knee joint. However, the JMR noted that “nothing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence.” English v. Wilkie, 30 Vet. App. 347 (2018). In its January 2020 decision, the Board did not state that Diagnostic Code 5257 provides that medical evidence was to be favored over lay evidence. Instead, the Board stated that “the Veteran is competent to describe these symptoms of locking and catching, and the Board has no reason to question his credibility in this regard. He is not competent; however, to determine whether this rises to a level of recurrent subluxation or lateral instability in the left knee joint.” Indeed, the Veteran had the opportunity to describe his symptoms to the VA examiners on several occasions. Notwithstanding the Veteran’s reports, the VA examiners did not find that the Veteran had recurrent subluxation or lateral instability in the left knee joint. However, a review of the Veteran’s VA treatment records does show that he uses an assistive device (walker) for stability, and he has been noted to be a fall risk. See e.g. July 2019 VA Treatment Records. The Veteran also endorsed having to constantly use a walker at his Board hearing. Although he has been found to be a fall risk largely due to his nonservice-connected low back disorder, the VA treatment records also suggest the Veteran’s left knee contributes to this risk. Therefore, the Board resolves all reasonable doubt in his favor, and finds that a 10 percent rating for slight instability is warranted prior to February 7, 2021. The Veteran has described, at worst, his left knee giving out on occasion. As such, the Board finds that his disability picture does not more nearly approximate moderate instability. As noted above, as of February 7, 2021, the regulations addressing Diagnostic Code 5257, the code for instability, have been amended. At his VA examination in July 2018, the Veteran endorsed constant use of a cane and walker. However, VA treatment records since that time only indicate that a walker has been prescribed. The Veteran has not been shown to continuously use a brace and he also did not endorse constant use of a brace at his April 2019 Board hearing. For example, VA treatment records from January 2018 and February 2018 indicate the Veteran used a left knee brace “all day every day.” VA treatment records from January 2018 indicate that the Veteran had an antalgic gait and used a walker. VA treatment records from May 2019 indicate that the Veteran presented for a walker that “lets you get in and out of the car easily.” A new model walker consult was ordered. Resolving all reasonable doubt in his favor, the evidence show that the Veteran was “prescribed” a walker for his left knee. Based on this, the Board finds that a 20 percent rating is warranted under the new rating criteria under Diagnostic Code 5257. Under the new criteria, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For even a 10 percent rating under this new criterion, the Veteran must demonstrate persistent instability. At no point during the appeal period has it been shown, even when considering the Veteran’s lay statements, that he experiences persistent instability of the left knee. However, the evidence does show that the Veteran has been prescribed a walker and also occasionally uses a brace. That is, he experiences functional loss in his left knee in the form of it occasionally giving out and also requires him to use at least one assistive device to ambulate. The Board is able to discern from the evidence of record that he has been prescribed at least one assistive device. Therefore, the Board resolves doubt in favor of the Veteran in finding that his disability picture most nearly approximates that contemplated by the 20 percent rating as of February 7, 2021. A higher 30 percent rating does not more nearly approximate the Veteran’s disability picture given the lack of persistent instability and the Veteran’s use of mainly his walker, without additional assistive device, for ambulation. Also, the evidence does not establish that a brace was prescribed for ambulation. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. The remainder of the diagnostic codes pertaining to the knee and leg also do not justify a higher rating. Diagnostic Code 5256 is not applicable because there is no ankylosis of the Veteran’s left knee. The existence of ankylosis is not supported by the Veteran’s VA examination reports or VA treatment records, which document range of motion. Diagnostic Code 5258 is applicable where there is cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. There has been no finding of dislocated, semilunar cartilage in the knees in the medical evidence, including in X-rays from the VA examinations. The VA examinations of record have also noted effusion and pain in the left knee joint. However, this must be accompanied by frequent episodes of locking in order to warrant an increase to 20 percent. Further, the Board has separately granted a rating for instability, which contemplates the Veteran’s left knee locking and giving way. Diagnostic Code 5262 (and its new rating criteria), which contemplates tibia impairment, has not been raised by the Veteran or the medical evidence, including the X-rays from the VA examinations. Further, Diagnostic Code 5263 is not applicable as the Veteran has not contended, nor demonstrated, that he experiences genu recurvatum of the left knee. The Veteran is in receipt of a 10 percent rating for residuals of a meniscectomy of the left knee under Diagnostic Code 5259-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that semilunar cartilage removal (Diagnostic Code 5259) was rated under the criteria for limitation of leg flexion (Diagnostic Code 5260). Diagnostic Code 5259 provides a maximum 10 percent rating for cartilage, semilunar, removal of, symptomatic, and the Veteran has not demonstrated that he had compensable limitation of motion (flexion or extension) at any point during the appeal period. As such, a higher rating is not warranted. As noted above, the Veteran has scars on his left knee following surgery. The JMPR did not take any issue with the Board’s previous analysis regarding the Veteran’s left knee scars. Unstable or painful scars are evaluated as follows: five or more scars that are unstable or painful (30 percent); three or four scars that are unstable or painful (20 percent); and one or two scars that are unstable or painful (10 percent). 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7804 Note (2) allows for an extra 10 percent rating if one or more of the scars are both unstable and painful. Diagnostic Code 7804, Note (1) defines an unstable scar as “one where, for any reason, there is frequent loss of covering of skin over the scar.” Deep and nonlinear scars that are not of the head, face, or neck are evaluated as follows: area of 929 square centimeters or greater (40 percent); area of 465 to 929 square centimeters (30 percent); area of 77 to 465 square centimeters (20 percent); and area of 39 to 77 square centimeters (10 percent). 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Code 7801, Note (1) defines a deep scar as “one associated with underlying soft tissue damage.” Superficial and nonlinear scars that are not of the head, face, or neck are evaluated as follows: area of 929 square centimeters or greater (10 percent). 38 C.F.R. § 4.118, DC 7802. Diagnostic Code 7802, Note (1) defines a superficial scar as “one not associated with underlying soft tissue damage.” The provisions of 38 C.F.R. § 4.118, DC 7805 apply to other scars, including linear scars, and “other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804.” Diagnostic Code 7805 contains the instruction “[e]valuate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.” 38 C.F.R. § 4.118. Diagnostic Code 7800 pertains to scars or disfigurement of the head, face, or neck and is therefore not pertinent to this appeal. The VA examinations of record consistently note the Veteran’s left knee scars are non-tender and/or non-painful and stable. The Board has considered the applicable ratings under every Diagnostic Code pertaining to scars and there is nothing in the record to indicate that there are any additional disabling effects from his left knee scars to consider under Diagnostic Code 7804. Upon review of the evidence of record, the Board finds that a rating higher than 10 percent for the Veteran’s left knee limitation of motion under hyphenated Diagnostic Code 5259-5260, is not warranted. However, a separate 10 percent rating for the Veteran’s left knee instability is warranted prior to February 7, 2021. As of February 7, 2021, based on the new rating criteria, a 20 percent rating, but no higher, is warranted for left knee instability. 2. Entitlement to a TDIU. In the October 2020 JMPR, the parties took issue with the Board’s denial of the Veteran’s claim for a TDIU. Among other things, the parties stated that the Board had previously misstated the Veteran’s combined rating. However, the parties are in error. Specifically, reference was made to the April 2018 rating decision code sheet. The parties stated, “based on these disabilities and a review of the most recent Code Sheet, Appellant’s combined rating is 70 percent from June 8, 2015.” However, a review of that same code sheet indicates that the Veteran’s combined rating has been 60 percent since June 8, 2015. Indeed, prior to February 7, 2021, even given the additional grant of a separate 10 percent rating for the Veteran’s left knee instability, the Veteran’s combined rating is 60 percent. See also March 2021 Rating Decision Code Sheet (noting a 60 percent combined rating from June 8, 2015). Since February 7, 2021, as a result of the additional 20 percent rating for left knee instability, the Veteran’s combined rating is 70 percent. TDIU benefits may be granted when it is established that the Veteran has service-connected disabilities that are so severe as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). However, failure to meet the schedular requirements for TDIU is not a bar to benefits. All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If the Board determines that the Veteran is unemployable due to his service-connected disabilities and does not meet the schedular requirements, the Board must refer the TDIU claim to the Director of Compensation Service for extraschedular consideration. Id. Beginning June 8, 2015, the Veteran's combined compensation rating is 60 percent to include: a 50 percent rating for depression, a 10 percent rating for bronchogenic cyst, a 10 percent rating for left knee disability (loss of motion); a 10 percent rating for left knee instability, and a noncompensable rating for his scar of the right eye. Since February 7, 2021, by way of this decision, his instability rating has been increased to 20 percent based on the new rating criteria. This brings his total rating to 70 percent. The JMPR found “the Board’s statement of reasons or bases is inadequate because it failed to properly consider Appellant’s currently rated disabilities and whether any of those disabilities should be treated as one disability.” Under 38 C.F.R. § 4.16(a), for the purposes of considering whether the schedular threshold for TDIU has been met, disabilities resulting from a common etiology are treated as one disability. This query is relevant only to the extent it would amount to “at least one disability ratable at 40 percent or more.” Put differently, even if the Board were to consider the Veteran’s depression and left knee disabilities as sharing a common etiology, this would not help the Veteran meet the schedular criteria for a TDIU. The Veteran is service-connected for his left knee and depression as secondary to his left knee. However, he has the remaining service-connected disability of “small foreign body scar, right eye” which is unrelated. Therefore, there is more than one disability and as such, a combined rating of 70 percent is necessary in order to meet the schedular requirements. He does not meet the schedular rating criteria prior to February 7, 2021. However, given the Veteran’s 50 percent rating for his depression as well as his additional disabilities from February 7, 2021, he meets the schedular criteria for TDIU as of that date. Regardless, as noted above, the Board must still consider whether the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment for the entire appeal period. The JMPR stated that the Board erred when it failed to adequately address the factors set out it Ray v. Wilkie. 31 Vet. App. 58 (2019). To be clear, the Board acknowledges that in Ray, supra, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. The noneconomic factors include the Veteran’s: work history, education, skill, and training; the Veteran’s physical ability to perform work activities; and the Veteran’s mental ability to perform work activities required by the Veteran’s occupation. Id. As to the noneconomic factors, the Board notes that the Veteran submitted a TDIU application received in July 2019 which states that he last worked in 2010 as a photographer in a night club. He previously worked as a bus driver for the San Diego Airport Shuttle Bus. He has a college education with a bachelor’s degree in physical education. The evidence does not show that the Veteran has work experience in physical labor. Instead, it shows that the Veteran has work experience in largely sedentary employment. In Withers v. Wilkie, the Court held that the meaning and relevance of the term sedentary work will have to be discerned on a case-by-case basis from the medical and lay evidence presented and considering each Veteran’s education, training, and work history. 30 Vet. App. 139(2018). Merriam-Webster online dictionary defines “sedentary” as (a) “doing or requiring much sitting” or (b) “not physically active.” https://www.merriam-webster.com/dictionary/sedentary. The Board employs this definition in the current analysis. Id. (before the Board can rely on an examiner’s finding that a veteran is capable of sedentary work to deny TDIU, it must also ensure that the finding is consistent with the medical evidence as a whole). As to the non-economic Ray factors, the Board notes that the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The May 2015 VA knee examination notes the Veteran, if working, would have to have a sedentary job as all weight bearing is painful. The examiner also noted the Veteran takes opiates for chronic pain which affected his concentration. The July 2016 knee examination noted similar findings in that the Veteran would be better suited for a sedentary job given his left knee disability and that he is on chronic morphine which “affects one’s concentration.” The June 2018 VA knee examination report noted the functional impact included difficulty walking or standing for prolonged periods. An August 2018 private vocational opinion states that the Veteran is not capable of “sustaining gainful and competitive employment since January 2015” and his service-connected disabilities “preclude him from being able to perform the essential work functions of his past work or any competitive job in the national economy.” The private vocational specialist noted the Veteran’s left knee disability and depression, namely the side-effects of the medication taken for his conditions, preclude him from sleeping well throughout the night, ambulating without the assistance of a walker, standing without a walker for any extended period of time without pain, sitting for more than twenty-five minutes without pain, concentrating well, and remaining focused on daily tasks. He stated that while working as a bus driver he found it difficult to get in and out of the vehicle due to his knee pain. The Veteran also stated that while working as a bus driver, he “worked part-time at nights at various nightclubs as a photographer and selling flowers.” The examiner noted the Veteran experiences significant fatigue, inability to think clearly, forgetfulness, and difficulty concentrating due to his required medications. The examination of the Veteran was not in-person but conducted by way of telephone interview. The Board does not find the August 2018 private vocational opinion probative. First, the United States Court of Appeals for the Federal Circuit has made clear that the ultimate question of whether a Veteran is capable of substantial gainful employment is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The vocational specialist did not address the impairment caused by the Veteran’s significant nonservice-connected disabilities, such as his back and hip, that may have caused impairment in his ambulation. Indeed, as noted above, the Veteran’s VA treatment records document that he is a fall risk largely due to his nonservice-connected low back disability. Further, the examiner made broad statements essentially attributing every symptom described by the Veteran to his service-connected disabilities. However, this is not supported by the evidence of record. For example, the examiner attributed the Veteran’s difficulty sleeping through the night to his depression and the medications he takes for his service-connected disabilities. However, the Veteran’s VA treatment records clearly show he has obstructive sleep apnea syndrome which causes him to have only 1-3 hours of sleep per night as a result of “dry mouth, mask discomfort, and nocturia.” See e.g. November 20109 & February 2020 VA Treatment Records. The Veteran’s sleep has not improved as a result of his poor compliance with CPAP use and his obesity. Id. Therefore, at best, the private vocational report is incomplete. In April 2019, the Veteran testified before the undersigned at Board hearing and asserted that he once bit someone’s finger when they put it in his face. Throughout the period on appeal, the Veteran’s VA psychiatric treatment records have consistently observed and characterized him as having an intact memory, logical, linear and goal-oriented thought processes. VA treatment records indicate he has also reported trouble concentrating. The 2015 and 2016 VA knee examinations note with regard to functional impairment, the Veteran's medications affect his concentration. However, the examiners found sedentary work would be appropriate for the Veteran as standing, sitting and walking for prolonged periods of time cause him left knee pain. None of the psychiatric examiners of record have described his depression as resulting in total occupational or social impairment. Further, the VA psychiatric examinations of record are silent for any concerns regarding the Veteran’s medications and how they affect his daily tasks. The Veteran’s current 50 percent rating accounts for chronic sleep impairment caused by his psychiatric disorder and impaired abstract thinking. To the extent the Veteran has contended that it is his medications that cause him to be sleepy, as opposed to his nonservice-connected obstructive sleep apnea, the Board finds that he is not competent. His VA treatment records, transcribed by medical professionals, clearly attribute his tiredness to his sleep apnea. Although they document the Veteran being given a 14mg patch for smoking cessation, which made him tired, the evidence further shows that he was taken off of it and the Veteran declined using it again. Regardless, smoking is not something for which he is service-connected. From the VA examination reports, the examiners do not identify a specific disability that would preclude sedentary employment (as defined above). Here, the Veteran’s occupational background as a shuttlebus driver for many years and educational attainment of at least a college degree confirms that he is well qualified for sedentary occupations. Specifically, even assuming that he bit a man’s finger that put it in his face, and experiences some level of impaired “impulse control,” the evidence does not show that the Veteran is generally unable to deal with the public. Further, there is nothing to suggest that the Veteran would not be able to perform an in-office job at a bus company, including taking calls. It is worth noting that shuttlebuses generally have automatic engines so the Veteran would not need to use his left knee in applying pressure to the pedals. Further, because the Veteran was previously a shuttlebus driver for many years, it is reasonable to assume he currently holds a commercial driver’s license. Thus, he can also work independently as a tractor trailer driver. Although a tractor trailer would have a clutch, thereby requiring use of the left knee, the Board finds that performing short hauls would allow him to move his knees whenever necessary. The evidence does not support that the Veteran cannot apply pressure to his left knee. Indeed, the Veteran’s VA treatment records show that despite his left knee disability, he continues to drive. See e.g. October 2019 VA Treatment Records (noting that the Veteran went to the DMV to take his driver’s license test); May 2019 VA Treatment Records (noting the Veteran drives his own car); and May 2018 VA Treatment Records (noting that the Veteran planned to drive to Sacramento to visit his elderly father for his birthday). Thus, the VA medical opinions indicating that his specific disabilities do not preclude sedentary work, as defined above, weighs against the instant TDIU claim because the Veteran’s background indicates he is well qualified for sedentary work. This is supported by the evidence as a whole. The Board does not dispute that his depression likely would impact his ability to work to the extent his concentration may be interrupted, or he may feel fatigued. However, the evidence of record does not show the Veteran was unable to maintain or sustain employment as a result of these symptoms. No employment letters or records have been included which note missed days from work. Additionally, these symptoms coupled with difficulty standing, sitting, and walking for prolonged periods do not preclude sedentary employment. The determination of whether a TDIU is warranted is not a medical determination, but rather, it is a legal one. The Veteran is in receipt of Social Security Administration (SSA) benefits for an organic mental disorder and substance abuse disorder since 1989. Importantly, the SSA finding was based on a diagnosis of bipolar affective disorder with psychosis, polysubstance abuse, and antisocial personality disorder, none of which are service-connected. Although not bound by the SSA determination, the Board considered this evidence in reaching its conclusion. Even SSA did not find that his depression and left knee disability, alone, caused him to be unemployable. This is also highly probative evidence against the Veteran’s claim. The private vocational specialist is certainly competent to provide as opinion as to a Veteran’s ability to find work. However, as noted above, the is not probative as it considered all of the Veteran’s disabilities in determining whether he would be able to find work. The Board may only consider the effects of the Veteran’s service-connected disabilities. Further, the vocational specialist has not shown that she has the necessary expertise to attribute certain symptoms to each disability as that is a medical determination. The Board does not dispute her competency in her field. However, her credentials do not support that she has medical expertise. Her opinion was based on the Veteran’s reports, which does not, by itself, make the opinion lack probative weight. However, as noted above, although the Veteran is competent to report symptoms he experiences, he is not competent in every case to attribute his symptoms to a certain diagnosis. For example, although he is competent to state that his left knee causes him pain which in turn causes him to be unable to stand for long periods of time, he is not competent to attribute sleepiness to medications, especially in light of his comorbid disabilities. Namely, his sleep apnea. In sum, the Board finds that the most probative evidence does not show that based on the Veteran’s employment and educational history that he would not be able to obtain and maintain substantial gainful employment. The evidence shows that the Veteran’s medications to treat his musculoskeletal pain, including significant pain and complaints in nonservice-connected joints as well as his nonservice-connected pseudogout, impact his alertness and ability to concentrate. The private vocational specialist’s opinion is outweighed by the SSA findings, the VA treatment records, and the VA examination reports showing that he would be capable of sedentary employment. The VA treatment records and VA examination reports specifically address the functional impairment caused by his depression and left knee disabilities, and by her own report, the vocational specialist indicated that she accepts these medical findings and uses her expertise of the labor market to consider the employability. The weight of the probative evidence does not support that the Veteran’s service-connected left knee disabilities and depression are of such severity so as to preclude his participation in any form of substantially gainful employment—both from an economic and non-economic standpoint. Thus, the Board sees no basis for referral of the TDIU claim to the Director of Compensation Service for extraschedular consideration prior to February 7, 2021. For the entire appeal period, the Veteran’s claim for TDIU must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.