Citation Nr: 21021208 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 07-19 434 DATE: April 12, 2021 ORDER Entitlement to a disability rating for service-connected lumbosacral strain (lumbar spine disability), in excess of 10 percent from October 24, 2005 to February 19, 2012, and in excess of 20 percent since February 20, 2012, is denied. Entitlement to a disability rating in excess of 10 percent for service-connected retropatellar pain syndrome of the left knee (left knee disability) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted for the period from March 6, 2017, subject to the law and regulations governing the award of monetary benefits. REMANDED Entitlement to a TDIU for the period prior to March 6, 2017 is remanded. FINDINGS OF FACT 1. From October 24, 2005 to February 19, 2012, the Veteran’s lumbar spine disability was productive of pain and thoracolumbar forward flexion to 85 degrees, at worst, with normal gait, normal spine contour, and without muscle spasm. 2. Since February 20, 2012, the Veteran’s lumbar spine disability has been productive of pain and forward flexion greater than 30 degrees without ankylosis of the lumbar spine. 3. During the entirety of the appeal period, the Veteran’s left knee disability has been productive of pain, flexion measured at 100 degrees, at worst, with pain and extension measured at 0 degrees. 4. For the period on appeal from March 6, 2017, the schedular criteria for a TDIU are met, and the Veteran is unable to secure and follow substantially gainful employment due to the service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an award of a higher disability rating for service-connected lumbosacral strain, in excess of 10 percent from October 24, 2005 to February 19, 2012, and in excess of 20 percent since February 20, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for an award of a higher disability rating in excess of 10 percent for service-connected retropatellar pain syndrome of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5260. 3. Resolving reasonable doubt in the Veteran’s favor, the he criteria for an award of a TDIU for the period from March 6, 2017 have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1975 to September 1992. In a November 2020 Board decision, the issues on appeal were remanded for further development. That development has been accomplished, and the appeal is returned for further action. Stegall v. West, 11 Vet. App. 268 (1998). The Board is cognizant that the Veteran has other claims awaiting development pending in a separate appeal stream. As those claims are not yet ripe for adjudication, those claims will not be addressed herein. INCREASED RATING Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluations 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. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. In evaluating musculoskeletal disabilities, consideration is given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. Johnson v. Brown, 9 Vet. App. 7 (1996). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) clarified that there is a difference between joint motion pain as opposed to pain that places further limitation of the particular range of motion. Disability of the musculoskeletal system is 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. The examination upon which ratings are based must adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The provisions 38 C.F.R. §§ 4.40, 4.45, 4.59 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson, 9 Vet. App. 7. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson, 9 Vet. App. 7; DeLuca, 8 Vet. App. at 206. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the rating claim was filed until a final decision is made. Separate ratings can be assigned for separate periods of time based on the facts found. This is a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to higher ratings for the lumbar spine disability The Veteran asserted in his October 2005 increased rating claim that his service-connected lumbosacral strain is more severe than his rating reflects. A June 2015 rating decision granted an increased rating of 20 percent for the service-connected lumbar spine disability effective February 20, 2012. The Veteran’s lumbar disability is rated under Diagnostic Code 5237. Diagnostic Code 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine. In this regard, ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2); see also 38 C.F.R. § 4.71a, Plate V. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance for rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Alternatively, disability involving disc disease may be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, which provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The Board notes that Diagnostic Code 5243, which is used to evaluate intervertebral disc syndrome was revised effective February 7, 2021. Should the application of Diagnostic Code 5243 result in a move favorable rating for the Veteran’s current appeal, the Board will consider both versions to determine the most favorable. A July 2006 VA contracted examination report detailed the Veteran’s reports that the lumbar spine disability impaired his ability to squat or perform other activities involving physical strain and exertion. The examiner noted that x-rays revealed moderate degenerative spine disorder. Lumbar spine forward flexion was measured to 85 degrees in both active and passive motion. The examiner also summarized that the Veteran had a diagnosis of degenerative lumbar spine syndrome with spondylosis, that lumbar spine magnetic resonance imaging (MRI) failed to detect any herniated disc, and that the Veteran had mild impairment of function with myofascial irritation. A February 2012 VA contracted examination detailed the Veteran’s reports that he had intense pain in his lumbar spine. Lumbar spine forward flexion was measured to 62 degrees with painful motion, and extension was measured at 17 degrees. The examiner noted unremarkable sacroiliac joints without tenderness on palpation, without inflammatory changes to the lumbar ligament, and without inflammation or joint blockage. The examiner did note tenderness on palpation over the lumbar irritation points of L5-S1 bilaterally without notation of severity resulting in abnormal gait or spinal contour. No sensory defects or weakness was noted by the examiner. A September 2016 VA examination report noted previous diagnoses of lumbar strain and degenerative arthritis. The Veteran described functional loss as inability to lift or carry heavy objects as well as difficulty with prolonged sitting. Lumbar spine forward flexion was measured to 90 degrees, and extension to 30 degrees. Pain was noted on examination which caused functional loss of right and left lateral flexion and rotation. There was no evidence of localized tenderness, muscle spasm, guarding, pain on palpation, ankylosis, or pain with weight bearing. The examiner noted pain with and without flare-ups caused functional loss without further loss of range of motion, to include with repetitive use testing. Additional factors contributing to disability included less movement than normal, disturbance of locomotion, and interference with standing. No IVDS was noted. A June 2017 VA examination recorded the Veteran’s complaints of ongoing low back pain which worsened with activity and movement. Lumbar spine forward flexion was measured to 75 degrees, and extension to 15 degrees with pain on motion that did not cause functional loss. The Veteran did not report flare-ups, and the examiner did not note pain on palpation, localized tenderness, guarding, muscle spasm, pain with weight bearing, ankylosis, or IVDS. The examiner noted the Veteran used a cane when back pain became persistent. Additional factors contributing to disability included disturbance of locomotion and interference with standing. A September 2020 VA examination report recorded the Veteran’s assertions of worsening symptoms caused by pain and stiffness after moderate use. Lumbar spine forward flexion was measured to 85 degrees, 70 degrees after repetitive use or with flare-ups, and extension measured 25 degrees, 15 degrees after repeated movement or flareup, with pain on motion that did not cause functional loss. The examiner noted pain on palpation or localized tenderness of a mild severity without evidence of pain with weight bearing, muscle spasm, guarding, or ankylosis. The Veteran reported use of a brace, crutch, and/or cane occasionally after extended ambulation. Medical treatment records during the appeal period reflect similar symptoms as the VA examination reports of record such as low back pain, but do not contain any range of motion measurements or evidence of other symptoms which can be used to determine entitlement to a higher rating. After careful review of the evidence, the Board finds that, for the period prior to October 24, 2005 to February 19, 2012, a rating in excess of 10 percent for service-connected lumbosacral strain under the General Rating Formula is not warranted. There is no evidence of lumbar flexion limited to 60 degrees. Indeed, the Veteran’s forward flexion measured 85 degrees at worst during this period. There was no evidence of ankylosis, muscle spasm, or guarding severe enough to result in abnormal gait or abnormal spine contour. There is no indication that the Veteran was diagnosed with or prescribed bedrest by a physician for IVDS during this period. As such, a higher rating is not warranted for IVDS based on Diagnostic Code 5243. Overall, the evidence, to include the Veteran’s range of motion testing and other physical findings, is consistent with a 10 percent disability rating during this period. From February 20, 2012, the Board finds that a rating in excess of 20 percent for service-connected lumbosacral strain under the General Rating Formula is not warranted. There is no evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less or ankylosis of the thoracolumbar spine. As discussed above, the relevant symptomatology since February 20, 2012 includes decreased motion, pain, flare-ups, and forward flexion, at worst, to 62 degrees. Such symptomatology is contemplated in the currently assigned 20 percent disability rating. Moreover, there is no evidence of favorable ankylosis of the lumbar spine. The Board notes that the Veteran has never been diagnosed with spinal ankylosis, and his physical findings do not suggest ankylosis. The Board notes that the Veteran has asserted that his service-connected back disorder warrants a higher disability rating. However, objective findings in the record do not support this assertion. The Veteran is competent to report certain obvious symptoms of his lumbar spine disability but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by the VA medical professionals who have examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has considered whether there are any other Diagnostic Codes which could apply to the Veteran’s back disability. Diagnostic Code 5242, as recently amended effective February 7, 2021, allows for a rating under Diagnostic Code 5003 or Diagnostic Code 5010 for arthritis. Diagnostic Code 5003 was recently amended effective February 7, 2021. The Board notes the Veteran has been found upon examination to have degenerative arthritis of the lumbar spine; however, Diagnostic Codes 5003 and 5010 provides for a compensable rating only if one is not available under the general formula. Thus, neither are applicable to this case. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010). The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned. The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his lumbar spine disability that is not already service connected. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). The Veteran is already service connected for radiculopathy of the left lower extremity. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an evaluation in excess of 10 percent from October 24, 2005 to February 19, 2012, and in excess of 20 percent since February 20, 2012, for the Veteran’s lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as his symptoms are supported by pathology consistent with the assigned ratings. In this regard, the Board observes that the Veteran has continually complained of low back pain during the appeal period. However, the effect of the pain in the Veteran’s back is contemplated in the currently assigned disability evaluations. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Thus, the Board finds that the weight of the evidence is against the claim for a rating in excess of 10 percent from October 24, 2005 to February 19, 2012 and in excess of 20 percent since February 20, 2012 for service-connected lumbosacral strain. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The appeal as to this issue is denied. 2. Entitlement to a higher rating for the left knee disability In his October 2005 claim for an increased rating, the Veteran asserted that his service-connected retropatellar pain syndrome of the left knee was more severe than his current rating reflects. His left knee disability is currently rated under Diagnostic Code 5299-5260. Under 38 C.F.R. § 4.27, unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and “99”. 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 evaluation assigned. The additional code is shown after a hyphen. As such, the Veteran’s left knee disability had been rated under Diagnostic Code 5260 based on limitation of flexion of the leg. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 15 degrees is rated 30 percent; flexion of the leg limited to 30 degrees is rated 20 percent; flexion of the leg limited to 45 degrees is rated 10 percent; and flexion of the leg limited to 60 degrees is rated as noncompensable. Under Diagnostic Code 5261 for limitation of extension of the knee, a 50 percent rating is warranted where extension is limited to 45 degrees, a 40 percent rating is warranted where extension is limited to 30 degrees, a 30 percent rating is warranted where extension is limited to 20 degrees, a 20 percent rating is warranted where extension is limited to 15 degrees, a 10 percent rating is warranted where extension is limited to 10 degrees, and a noncompensable rating is warranted where extension is limited to 5 degrees. Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for limitation of flexion and limitation of extension of the same knee joint. See VAOPGCPREC 9-2004 (September 17, 2004). Separate disability ratings are possible for limitation of knee motion and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). Diagnostic Code 5257 addresses recurrent subluxation or lateral instability of the knee. This Diagnostic Code was recently amended effective February 7, 2021. Under this amended Diagnostic Code, a 30 percent rating is warranted where unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted where there is either (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) there is 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 where there is 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. Patellar instability is also rated under Diagnostic Code 5257. A 30 percent 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 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, a cane, or a walker. A 10 percent 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) states: for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) stated: 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). Prior to February 7, 2021, Diagnostic Code 5257 provides that a 30 percent rating is warranted where subluxation or lateral instability is severe. A 20 percent rating is warranted where subluxation or lateral instability is moderate. A 10 percent rating is warranted where subluxation or lateral instability is slight. As the Veteran’s appeal was certified to the Board prior to February 7, 2021, the Board will consider both versions of Diagnostic Code 5257, if applicable, to determine the most favorable. When x-ray findings of arthritis are present and a veteran’s knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98 (August 14, 1998); see also Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). A July 2006 VA contracted examination report noted the Veteran’s complaint of left knee pain, as well as prior arthroscopic surgery. Forward flexion of the left knee was measured to 140 degrees in passive motion and 135 degrees in active motion with pain noted at the end of motion. The examiner noted deteriorated cartilage of the left knee with signs of early arthritis. No ankylosis or instability was noted. A February 2012 VA contracted examination report recorded left knee flexion of 124 degrees with pain noted at 95 degrees in the retropatellar region, and left knee extension to 0 degrees, to include after repetitive use testing. The examiner diagnosed retropatellar osteoarthritis of the left knee. No ankylosis or instability was noted. July 2006, February 2012, June 2017, A June 2017 VA examination report noted the Veteran’s complaint of left knee pain with hyperextension which worsened with activity. Flexion measured 140 degrees and extension measured 0 degrees. The examiner noted additional disability factors of instability of station, disturbance of locomotion, and interference with standing. No ankylosis or instability was noted, but the examiner did note crepitus, pain on flexion, and evidence of pain on weight bearing. The examiner confirmed degenerative arthritis of the left knee, and the examiner noted the Veteran’s use of a brace in response to his left knee pain. The Veteran submitted a November 2016 disability benefits questionnaire (DBQ) by private physician Dr. V.S. The private examiner noted the Veteran’s reports of left knee pain, that his walking distance is limited to about 300 yards, that standing is limited to 15 minutes, and that he had functional limitations with respect to kneeling, squatting, and lifting. Dr. V.S. recorded left knee flexion to 114 degrees (98 degrees after repetitive use testing, 80 degrees with flare-ups or when used repeatedly over a period of time), and extension to -12 degrees (-13 degrees after repetitive use testing, -15 degrees with flare-ups or when used repeatedly overtime). The private examiner noted left knee ankylosis in flexion between 10 and 20 degrees. While the examiner noted that the Veteran had abnormal anterior instability test (Lachman test), it was noted that the Veteran did not have any history of recurrent subluxation or lateral instability. An August 2020 VA examination report also noted the Veteran’s complaint of left knee pain with use which worsened with moderate activity. Left knee flexion was measured to 140 degrees and extension to 0 degrees. After repeated motion, flexion was measured to 120 degrees and extension to 0 degrees with pain noted on flexion and extension. The examiner noted moderate medial patellar pain on palpation or localized tenderness without evidence of pain on weight bearing or crepitus. The examiner opined that with flare-ups, left knee flexion was to 100 degrees and extension 0 degrees. It was noted that the Veteran did not have ankylosis or a history of subluxation or lateral instability. The examiner diagnosed degenerative arthritis of the left knee and noted the Veteran’s use of assistive devices due to his left knee pain. Medical treatment records during the appeal period reflect similar symptoms as the VA examination reports of record such as left knee pain, but do not contain any range of motion measurements or evidence of other symptoms which can be used to determine entitlement to a higher rating. After review of the record, the Board finds that a rating in excess of 10 percent for service-connected retropatellar pain syndrome is not warranted at any time during the appeal period. First, at no time during the appeal period was the Veteran’s service-connected left knee disability measured to have flexion limited to 30 degrees or less as required for a 20 percent rating under Diagnostic Code 5260. At worst, the Veteran’s left knee flexion was measured to 80 degrees due to flare-ups and with repeated use over time. As such, the Veteran is not found to meet the criteria for a 20 percent rating for the service-connected left knee under Diagnostic Code 5260, which requires flexion to be limited to 30 degrees. The Board has also considered separate disability ratings for the service-connected left knee disability. The Board finds that the Veteran is not entitled to a separate rating for left knee extension under Diagnostic Code 5261 as the Veteran’s left knee extension has measured 0 degrees for the entire appeal period. The November 2016 DBQ by Dr. V.S. noted negative left knee extension measurement, which weighs against a finding that the left knee disability is productive of extension limited to 10 degrees or more. Based on the foregoing, the Veteran is not found to meet the criteria for a compensable rating under Diagnostic Code 5261, which requires extension to be limited to 10 degrees or more. Turning to Diagnostic Code 5257, at no time during the appeal was the Veteran’s left knee noted to have recurrent subluxation or lateral instability of any severity. See July 2006, February 2012, June 2017, and August 2020 VA examination reports. Moreover, while the November 2016 DBQ by Dr. V.S. noted that the Veteran had abnormal anterior instability test (Lachman test), it was noted that the Veteran did not have any history of recurrent subluxation or lateral instability. As such, the service-connected left knee disability does not warrant a higher rating under Diagnostic Code 5257 at any point during the appeal period. Applying the amended Diagnostic Code 5257 effective February 7, 2021, although the Veteran does have evidence of a repaired meniscal tear, there is no evidence of record that this causes any instability. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The Veteran himself has consistently endorsed the use of assistive devices solely because of left knee pain, and neither the Veteran nor the medical evidence of record support the use of assistive devices as a result of any instability related to the left knee or the repaired meniscal tear of the left knee. As such, the Board finds that a separate rating under Diagnostic Code 5257 is not warranted. The Board has also considered whether a higher or separate rating is warranted under Diagnostic Code 5256, for ankylosis of the knee, which provides that favorable ankylosis of either knee warrants a 30 percent evaluation. Ankylosis is considered to be favorable when the knee is fixed in full extension, or in slight flexion at an angle between 0 and 10 degrees. A 40 percent evaluation requires that the knee be fixed in flexion at an angle between 10 and 20 degrees. When the knee is fixed in flexion between 20 and 45 degrees, a 50 percent rating is assigned. A 60 percent rating is warranted for extremely unfavorable ankylosis, with the knee fixed in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a. In this case, the November 2016 DBQ by Dr. V.S. noted left knee ankylosis in flexion between 10 and 20 degrees. However, left knee flexion measurements provided by Dr. V.S. in the same DBQ demonstrate that the Veteran’s left knee was ankyloses (fixed) in flexion between 10 and 20 degrees. Specifically, as discussed above, Dr. V.S. recorded left knee flexion to 114 degrees (98 degrees after repetitive use testing, 80 degrees with flare-ups or when used repeatedly over a period of time). Accordingly, in light of this internal inconsistency in the November 2016 DBQ, the Board finds that the finding of left knee ankylosis in that DBQ is not credible. Such finding is also contradicted and outweighed by multiple VA examinations before and after November 2016, which showed no evidenced of ankylosis of the left knee. Based on the foregoing, the Board finds that a higher or separate rating under Diagnostic Code 5256 is not warranted. Finally, the Board additionally considered whether the Veteran is entitled to a higher rating due to functional impairment under the provisions of 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. 202. In making this determination, the Board considered the Veteran’s lay statements regarding his symptoms, VA examination reports, and VA treatment records. While the record shows knee pain and difficulty with some physical activities, the evidence does not show that his symptoms and flare-ups produce functional loss that is manifested by disabling pathology for higher ratings. See 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 38. Indeed, the Veteran’s disability ratings are already based on the extent to which his symptoms reduce range of motion and cause pain that results in functional impairment as described by the Veteran. While the Veteran has been shown to experience left knee pain, the Court of Appeals for Veterans Claims (Court) has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Id. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Here, the Veteran consistently retained flexion consistent with, at worst, a 20 percent rating and extension that is noncompensable. As such, there is no basis for higher ratings under Diagnostic Codes 5260 or 5261 for the service-connected left knee. To the extent that it is argued that the Veteran’s range of motion is painful and therefore would merit a separate compensable rating under 38 C.F.R. § 4.59, that provision states that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. However, here, the Veteran is currently assigned the minimum compensable rating, and a rating in excess of 10 percent based on pain alone is not warranted. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the left knee disability. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. The appeal as to this issue is denied. 3. Entitlement to a TDIU from March 6, 2017 is granted. The Veteran contends that he is unemployable due to his service-connected disabilities and is, therefore, entitled to a TDIU. In June 2007, the Veteran filed a formal claim for TDIU. As a part of the Veteran’s claim to a TDIU was based on his service-connected lumbar spine and left knee disability symptoms precluding him from employment, the issue of TDIU is part of his increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability ratings for compensation may be assigned where the schedular rating is less than total, and the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). During the appeal period. the Veteran is service connected for cervical spine degenerative changes at 20 percent, lumbosacral strain rated at 10 percent prior to February 20, 2012, and at 20 percent from February 20, 2012, retropatellar pain syndrome of the left knee rated at 10 percent, retropatellar pain syndrome of the right knee rated at 10 percent, hyperthyroidism rated at 10 percent, bursitis of the left lower extremity rated at 10 percent, bursitis of the right lower extremity rated at 10 percent, tinnitus rated at 10 percent, and radiculopathy of the left lower extremity rated at 10 percent. During the appeal period, he is also service connected for residuals of fracture of the left third finger, residuals of injury of the right third finger, duodenal ulcer, bursitis of the left and right lower extremity, and coronary vessel disorder, all of which rated noncompensable. The Veteran has a combined rating of 70 percent as of March 6, 2017, and under 38 C.F.R. § 4.16(a)(3), the service-connected orthopedic system disabilities, rated together, total 50 percent. As such, since March 6, 2017, the schedular eligibility requirements for entitlement to a TDIU under 38 C.F.R. § 4.16(a) are met. The question, then, is whether the service-disabilities render the Veteran unable to obtain or retain substantially gainful employment. Factors to be considered include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor to be considered. 38 C.F.R. § 4.16. A review of the evidence of record reflects the significant impact that the Veteran’s service-connected disabilities has had on his ability to work since March 6, 2017. Here, the Board finds that there is evidence to support the Veteran’s contention that he could no longer obtain a substantially gainful occupation as a result of his service-connected disabilities. The Veteran reported that after service separation, he worked as a boat mechanic from September 2001 to July 2003, a site lead mechanic from February 2004 to March 2005, a field technician from April 2005 to November 2005, a logistics analyst from January 2006 to March 2007, and an information technology technician from January 2009 to December 2015. His highest education is listed as an associate degree with additional certifications as a shipping agent and various certifications from Microsoft. He listed that he was unable to work because of degenerative vertebrae in his back, his age, prospects of employment in his area, pain from his various disabilities, and difficulty with sleep and concentration. The evidence in support of the Veteran’s claim includes an August 2020 VA examiner’s opinion that the Veteran’s service-connected disabilities rendered him unable to work seated for a long period of time, carry a heavy bag, drive for a moderate amount of time, work with the knee flexed, or run. The examiner also opined that the Veteran is unable to work in an office because of the incapacity to rest seated for a long period of time. This opinion ostensibly finds that the Veteran’s disabilities preclude him from any type of employment, whether physically laborious, sedentary, or otherwise. See also December 2018 opinion by private vocational rehabilitation specialist F.F. (that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment since at least 2013). In light of the Veteran’s occupational background and functional limitations, and after resolving reasonable doubt in his favor, the Board finds that since March 6, 2017, the Veteran’s service-connected disabilities were sufficient to render him unable to obtain and maintain any form of substantially gainful employment, in accordance with his occupational background and education level. Accordingly, the Board finds that entitlement to a TDIU since March 6, 2017 is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to a TDIU for the period prior to March 6, 2017 is remanded. For the period prior to March 6, 2017, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16 (a) are not met because the Veteran did not have a single service-connected disability rated at least 60 percent or a combined schedular rating of at least 70 percent. However, as discussed above, in December 2018, private vocational rehabilitation specialist F.F. opined that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment since at least 2013. Therefore, The Veteran’s claim for a TDIU for the period prior to March 6, 2017 is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to March 6, 2017 to the Director of the Compensation and Pension Service for extraschedular consideration. 2. After completing the above, and any other development deemed necessary, readjudicate the TDIU claim for the period prior to March 6, 2017. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond. Thereafter, return the matter to the Board for further adjudication, if otherwise in order. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.