Citation Nr: 21021287 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-02 483 DATE: April 12, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to January 7, 2020 for left knee instability is denied. Entitlement to a rating in excess of 10 percent prior to January 7, 2020 for right knee instability is denied. For the entire period on appeal, entitlement to a separate rating of 20 percent, but no higher, for right knee dislocated cartilage with frequent episodes of “locking,” pain and effusion, is granted. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is denied. Entitlement to a rating in excess of 10 percent prior to January 7, 2020 for left knee osteoarthritis is denied. Entitlement to a rating in excess of 20 percent after January 7, 2020 for left knee osteoarthritis is denied. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) prior to May 31, 2014 is denied. REMANDED Entitlement to a rating in excess of 20 percent after January 7, 2020, for left knee instability is remanded. Entitlement to a rating in excess of 20 percent after January 7, 2020 for right knee instability is remanded. FINDINGS OF FACT 1. Prior to January 7, 2020, the Veteran’s left knee instability did not cause moderate recurrent subluxation or lateral instability or frequent episodes of joint locking. 2. Prior to January 7, 2020, the Veteran’s right knee instability did not cause moderate recurrent subluxation or lateral instability. 3. For the entire period on appeal, the Veteran’s right knee disability manifested as frequent episodes of “locking,” pain and effusion. 4. The Veteran’s right knee osteoarthritis is not manifest by limitation of flexion to 30 degrees or less at any time during the period on appeal. 5. Prior to January 7, 2020, the Veteran’s left knee osteoarthritis was not manifest by limitation of flexion to 30 degrees or less. 6. From January 7, 2020, the Veteran’s left knee osteoarthritis is not manifest by limitation of flexion to 15 degrees or less. 7. Prior to May 31, 2014, the Veteran was gainfully employed and not precluded from securing substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to January 7, 2020, the criteria for a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. Prior to January 7, 2020, the criteria for a rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. The criteria for a separate evaluation of 20 percent, but no higher, for right knee disability, with frequent episodes of “locking,” pain and effusion have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.45, 4.71a, Diagnostic Code 5258. 4. The criteria for a rating in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5260. 5. Prior to January 7, 2020, the criteria for a rating in excess of 10 percent for left knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5260. 6. From January 7, 2020, the criteria for a rating in excess of 20 percent for left knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5260. 7. Prior to May 31, 2014, the criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1978 to February 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2013 and May 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Board remanded these issues to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Relevant Evidence During June 2012 VA treatment, the Veteran’s knees exhibited full range of motion and no instability was present. He reported right knee pain with episodic locking and giving way. October 2012 VA diagnostic testing revealed that the Veteran had a horizontal degenerative type tear involving the medial meniscus in his right knee. He was given a knee brace. The Veteran filed a claim for entitlement to a higher rating for his service-connected right knee condition in July 2012. October 2012 VA treatment records reflect that the Veteran was prescribed a brace for his right knee. He continued to report instability, locking, and giving way “at times.” The Veteran stated his right knee caused pain at a 3/10 on the pain scale, described as sharp and aching. See January 2013 VA treatment records. The Veteran attended a VA examination in March 2013. He reported flare-ups of right knee pain that impacted his walking and caused “slipping of the joint.” Range of motion testing in the right knee revealed flexion to 140 degrees, with pain reported at 60 degrees, and extension to 0 degrees, with pain reported at 5 degrees. Range of motion testing in the left knee revealed flexion to 140 degrees, with pain reported at 55 degrees, and extension to 0 degrees, with pain reported at 5 degrees. There was no additional loss of function following repetitive testing. The examiner determined that the Veteran’s knee conditions caused pain on movement and bilateral crepitus. Joint stability testing was normal bilaterally, and there was no evidence of recurrent patellar subluxation or dislocation. The Veteran reported a right knee meniscal condition with frequent episodes of locking and joint pain. The Veteran had not received surgical intervention on either knee. The examiner ultimately determined that the Veteran’s bilateral knee conditions would cause partial impairment of physical activities like running, jumping, and walking long distances. During April 2013 VA treatment, the Veteran denied any history of falling and he walked with a normal gait. The Veteran underwent a right knee arthroscopy, partial meniscectomy and microfracture chondroplasty for his right knee in April 2013. In May 2013, the Veteran reported that he was “doing extremely well” and was very happy with his surgery. He exhibited excellent range of motion and he denied attending physical therapy. The treating physician reported that there was no need to schedule any additional follow up treatment. June 2013 VA treatment records reflect full range of motion and no knee swelling. It was noted that the Veteran was healing well and was ready to return to work. July 2013 private treatment records reflect that the Veteran walked with a normal gait and reported being able to exercise. The Veteran filed a claim for entitlement to a higher rating for his service-connected left knee disability in August 2013. In December 2013 VA treatment records, the Veteran reported that the results from the surgery were good. Examination revealed no instability. February 2014 private treatment records reflect that the Veteran walked with a normal gait. In March 2014 correspondence, the Veteran’s employer submitted a letter stating that the Veteran had been employed since November 6, 2011 and excelled as a small arms repairman. The employer stated that at the time of the letter, the Veteran was unable to maintain his job responsibilities because of his service-connected disabilities. The Veteran attended another VA examination in April 2014. He reported flare-ups of knee pain that reduced his endurance for prolonged walking. Range of motion testing in the right knee revealed flexion to 100 degrees and extension to 0 degrees, with no objective evidence of painful motion. Range of motion testing in the left knee revealed flexion to 90 degrees and extension to 0 degrees, with no objective evidence of painful motion. There was no additional loss of function following repetitive testing. Anterior and posterior instability testing was normal bilaterally, 1+ bilaterally during medial-lateral instability testing. There was no evidence of recurrent patellar subluxation or dislocation. The Veteran reported bilateral asymptomatic shin splints and denied any meniscal conditions. The examiner determined that the Veteran’s bilateral knee conditions would cause reduced endurance for prolonged walking and standing, and that he would need to change positions frequently. The Veteran filed for entitlement to a TDIU rating in June 2014. He reported that he last worked fulltime on May 31, 2014. In July 2014 Virginia Employment Commission correspondence, the Veteran’s doctor reported that the Veteran was unable to work between April 2013 and June 2013 because of a right knee surgery. The doctor stated that the Veteran was unable to stand more than 30 minutes at a time and was unable to lift more than 15 pounds. In July 2014 correspondence, the Veteran’s employer reported that the Veteran worked fulltime without concessions until May 30, 2014. After which, the Veteran went to part time work because there was not as much work available. The employer stated that the Veteran was still employed with them and had not lost any work in the last year due to his disabilities. The Veteran attended a VA examination in July 2014. He told the examiner that his right knee had been worse since his April 2013 surgery. He reported flare-ups of knee pain that caused weakness, pain, and stiffness. Range of motion testing in the right knee revealed flexion to 125 degrees and extension to 0 degrees, with no objective evidence of painful motion. Range of motion was not tested in the left knee. Following repetitive use testing, the Veteran’s right knee flexion was limited to 100 degrees with no additional loss of extension. The examiner determined that the Veteran’s right knee disability caused limited motion, pain, and weakness. Joint stability testing was normal bilaterally, and there was no evidence of recurrent patellar subluxation or dislocation. The Veteran denied shin splints. He reported a right knee meniscus tear with frequent episodes of joint pain. The Veteran reported using a knee brace for each knee regularly. The examiner determined that the Veteran’s knee conditions would cause problems with lifting, crawling, standing on concrete, and prolonged walking and standing. During VA treatment in September 2014, the Veteran reported increased right knee pain with instability and locking. He denied any falls in the last year and was not worried about falling. His walk appeared normal. During December 2014 VA treatment, the Veteran stated that a hinged left knee support was very helpful and reduced pain and instability. He continued to report positive results from the April 2013 right knee surgery. In October 2014 Social Security Administration (SSA) records, the Veteran’s spouse reported being worried about his stability due to knee locking issues. December 2014 VA treatment records reflect that the Veteran denied any falls but reported that his knee was “unstable at times.” During January 2015 private treatment, the Veteran reported bilateral intermittent pain in his knees with popping. He denied any new symptoms and his gait was normal. During February 2015 private treatment, the Veteran walked with a normal gait. June 2015 VA diagnostic testing revealed that the Veteran had mild degenerative joint disease of the knees, worst in the left medial compartment. He reported falling within the last year due to weakness. He also reported that back and knee pain affected his activity, energy and sleep, but did not interfere with his activities of daily living. June 2016 VA treatment records revealed that the Veteran appeared to walk normally. He denied any falls in the previous year and he was not worried about falling. December 2016 VA treatment records reflect that the Veteran had mild valgus and instability in the right knee. He exhibited normal range of motion bilaterally. During November 2017 VA treatment, the Veteran reported that he fell twice within the last year without serious injury. There was no edema present and he was not wearing a knee brace. December 2017 VA treatment records reflect that the Veteran walked independently without any assistive devices but reported knee pain and buckling when performing transfers. November 2018 VA treatment records revealed that the Veteran walked easily. Observation of his walking appeared normal. He denied any falls in the last year and he was not worried about falling. During November 2019 VA treatment, the Veteran reported that his knee pain was stable, and his observed walk was described as normal. The Veteran attended another VA examination in January 2020. He reported constantly wearing a left and right knee brace. The Veteran stated that prior to the April 2013 right knee procedure, he remembered significant right knee pain and instability which significantly limited any weight bearing activities. He reported a steady progression of severity. The Veteran told the examiner that he experienced flare-ups of knee pain, described as knee popping and pain. He stated he was unable to sit continuously for more than two hours. Range of motion testing revealed right knee flexion to 70 degrees and extension to 5 degrees. Left knee range of motion testing revealed flexion to 65 degrees and extension to 0 degrees. There was no objective evidence of crepitus in either knee. There was no further loss of range of motion following repetitive use testing. The examiner stated that the Veteran was being examined immediately after repetitive use over time and right knee range of motion was 5 to 55 degrees, and left knee range of motion was 0 to 50 degrees. Although the examination was not being conducted during a flare-up, the examiner estimated that the Veteran’s right knee range of motion would be limited to 0 to 35 degrees and his left knee range of motion would be limited to 0 to 30 degrees. Examination revealed full muscle strength and no muscle atrophy. The Veteran declined joint stability testing but subjectively reported moderate lateral instability. There was no history of recurrent subluxation or recurrent effusion. The examiner stated that passive range of motion was equal to active range of motion, however the Veteran did not remove his knee brace during testing. The Veteran’s knee disabilities would prevent the Veteran from performing tasks that required prolonged standing, prolonged walking, any degree of running, or any tasks that require crawling, squatting, or stooping. The Veteran was able to complete activities of daily living independently, but with difficulty. The examiner explained that after examining the Veteran and listing to his subjective complaints, the knee conditions had worsened. July 2020 VA treatment records reflect that the Veteran was able to walk without assistance and had full range of motion. Remaining VA treatment records reflect regular treatment for knee pain and the use of a knee brace. 1. Entitlement to a rating in excess of 10 percent prior to January 7, 2020 for left knee instability 2. Entitlement to a rating in excess of 10 percent prior to January 7, 2020 for right knee instability The Veteran contends that he is entitled to higher ratings for his right and left knee instability. The Veteran is currently in receipt of 10 percent ratings for his left and right knee instability under Diagnostic Code (DC) 5257 prior to January 7, 2020 and 20 percent thereafter. The recent amendments did involve Diagnostic Code 5257. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, “severe” represented the highest or most extreme level of disability. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent rating. A rating in excess of 10 percent is not warranted for either knee prior to January 7, 2020, under Diagnostic Code 5257. Specifically, the Board finds the record does not support a finding of worse than slight instability during this period. The record indicates that joint stability testing was consistently normal, with one mild exception during the April 2014 VA examination. The record does include the Veteran’s history of instability “at times,” but the record generally shows negative fall histories. Based on the evidence of multiple conditions affecting the lower extremities, including bilateral radiculopathy, and the Veteran’s histories and clinical findings, the Board finds the Veteran’s right and left knee instability does not approximate moderate instability prior to January 7, 2020. Regarding instability, the Board finds the objective observations of the Veteran’s normal walk noted in VA treatment records to highly probative. The Veteran also only reported instability “at times” and does not appear to report anything more than mild instability during his VA treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board has carefully considered the Veteran’s reports about instability. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate severity. As a preponderance of the evidence is against a rating in excess of 10 percent prior to January 7, 2020 for left and right knee instability, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b). Accordingly, the claim is denied. 3. Entitlement to a separate rating of 20 percent for right knee dislocated cartilage disability, with frequent episodes of “locking,” pain and effusion The Board finds that a separate 20 percent rating for right knee disability under Diagnostic Code 5258 is warranted during the entire period on appeal, as the VA treatment records and the majority of the VA examinations note right knee pain and intermittent “locking,” as well as a history of right knee arthroscopy. Based on such findings, a maximum 20 percent rating is warranted for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint pursuant to Diagnostic Code 5258. 4. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis The Veteran is currently in receipt of 10 percent ratings for his right knee osteoarthritis under DC 5010-5260. Excluding a temporary total disability rating from April 16, 2013 to July 1, 2013, the Veteran has been in receipt of a 10 percent disability rating under DC 5010-5260, pertaining to limitation of flexion. Flexion of the leg limited to 60 degrees warrants a noncompensable rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that the recent amendments to the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries did not alter the rating criteria for limitation of motion. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). After consideration of the record, the Board finds a higher rating is not warranted based on limitation of motion. The reported pain on motion and functional impairment of motion is already contemplated in the rating assigned, and the record consistently reveal motion from at least 0 to 35 degrees at the very worst and during a flare-up. In most cases, the VA treatment records do not reveal significantly limited range of motion and demonstrate that the Veteran walks with a normal gait. The Board acknowledges that the March 2013, April 2014 and July 2014 VA examiners did not quantify the effect of repeated use over time and flares on functional ability, however the January 2020 VA examiner did provide these estimates with explanation that the right knee disability had increased in severity. Even with the January 2020 VA examiner’s estimates of limited function during flare-ups and repeated use, the Veteran still does not meet the criteria for a higher rating. Notably, the history of increasing symptoms and impairment suggests that the 2020 examiner’s determinations would, at worst, be an overestimation of the general effect of repeated use over time and flares. In sum, the Board finds the Veteran’s range of motion does not approximate the limitation of flexion to 30 degrees needed for a higher rating, even after consideration of repeated use over time and flares. The Board has considered whether a higher rating is warranted based on limitation of motion. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran’s ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Additional diagnostic codes have been considered. However, with the exception of instability and locking (addressed above), the evidence does not reflect, and the Veteran does not allege, that he has tibia or fibula impairment, genu recurvatum, a compensable limitation of extension or ankylosis of either knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. Furthermore, the Veteran has a separate noncompensable disability evaluation for right knee limitation of extension under DC 5261. There is no evidence of record to suggest that the Veteran’s right knee extension is ever limited to 10 degrees, to include during a flare-up. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for right knee osteoarthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a rating in excess of 10 percent prior to January 7, 2020 for left knee osteoarthritis 6. Entitlement to a rating in excess of 20 percent after January 7, 2020 for left knee osteoarthritis is remanded. The Veteran contends he is entitled to higher ratings for his left knee osteoarthritis. The Veteran is in receipt of a 10 percent rating for left knee osteoarthritis under DC 5010-5260 prior to January 7, 2020 and 20 percent thereafter. After consideration of the record, the Board finds higher ratings are not warranted based on limitation of motion during either period. The reported pain on motion and functional impairment of motion is already contemplated in the rating assigned, and the record consistently reveal motion from at least 0 to 90 degrees prior to January 7, 2020 and more than 30 degrees thereafter. The Board has considered whether higher ratings are warranted based on limitation of motion. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran’s ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). VA treatment records consistently reflect that the Veteran walked normally. As discussed above, the Board acknowledges that the March 2013, April 2014 and July 2014 VA examiners did not quantify the effect of repeated use over time and flares on functional ability. Again, the January 2020 VA examiner did provide these estimates with explanation that the left knee disability had increased in severity. The RO used the results from the January 2020 VA examiner’s estimates of limited function during flare-ups and repeated use, to award a higher rating. Notably, the history of increasing symptoms and impairment suggests that the 2020 examiner’s determinations would, at worst, be an overestimation of the general effect of repeated use over time and flares. The examiner also explains that the Veteran’s knee disabilities had progressed. With the noted progression, and estimated loss of function during a flare-up just meeting the 20 percent criteria under DC 5260, the Board finds that the Veteran would not be entitled to a 20 percent disability rating prior to the date of the January 2020 examination. The Board notes that in July 2020, VA treatment records revealed that the Veteran had full range of motion and walked with a normal gait. The Board finds the VA treatment records to be highly probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In sum, the Board finds the Veteran’s left knee range of motion does not approximate the limitation of flexion to 30 degrees prior to January 7, 2020, or 15 degrees thereafter, needed for higher ratings, even after consideration of repeated use over time and flares. TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. § § 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). When two or more disabilities are treated as one, the ratings for those disabilities are combined using the combined ratings table. 38 C.F.R. § 4.25. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. § § 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. 7. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) prior to May 31, 2014 The Veteran contends he is entitled to a TDIU rating prior to May 31, 2014. As discussed above, the record reflects that the Veteran was gainfully employed in fulltime work prior to May 31, 2014. This is repeated continuously throughout the record by the Veteran and also supported by the Veteran’s employer’s statements. As mentioned above, in July 2014 correspondence, the Veteran’s employer reported that the Veteran worked fulltime without concessions until May 30, 2014. After which, the Veteran went to part time work because there was not as much work available. The employer stated that the Veteran was still employed with them and had not lost any work in the last year due to his disabilities. Importantly, the Board finds that prior to May 31, 2014, the Veteran’s service-connected disabilities did not preclude the Veteran from obtaining and maintaining substantially gainful employment because he was working fulltime without concessions and had not missed any work due to his disabilities. Therefore, the Board finds that the Veteran was able to secure or follow a substantially gainful occupation prior to May 31, 2014. As the preponderance of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 8. Entitlement to a rating in excess of 20 percent after January 7, 2020, for left knee instability 9. Entitlement to a rating in excess of 20 percent after January 7, 2020 for right knee instability During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended. 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 Codes 5003, 5257). As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Because the record does not contain sufficient evidence to rate the Veteran’s disabilities under the new rating criteria, new examinations are warranted during this timeframe. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his left knee disabilities. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran’s lay statements regarding his current symptoms, the examiner should identify any findings related to the Veteran’s knee instability disabilities and fully describe the current extent and severity of those symptoms. The examiner should discuss all findings in terms of the Schedule of Ratings for the Knee and Leg, to include the new amended rating criteria for Diagnostic Code 5257. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding symptoms and the opinion should note that consideration. A clearly stated rationale must be provided for any opinion offered. 3. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran’s claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.