Citation Nr: 21023321 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 10-29 002 DATE: April 20, 2021 ORDER Beginning October 18, 2011, and prior to September 10, 2020, entitlement to a rating in excess of 10 percent for left knee degenerative joint disease based on limitation of flexion is denied Beginning September 10, 2020, entitlement to a rating in excess of 20 percent for left knee degenerative joint disease based on limitation of flexion with meniscal tear is denied. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease based on limitation of flexion is denied. Entitlement to a 10 percent rating, but no higher, for the left knee based on limitation of extension is granted, subject to the laws and regulations governing the payment of monetary payments. Entitlement to a 10 percent rating, but no higher, for the right knee based on limitation of extension is granted, subject to the laws and regulations governing the payment of monetary payments. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 17, 2015, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Beginning October 18, 2011, and prior to September 20, 2020, the preponderance of the evidence weighs against a finding the Veteran’s left knee disability was manifested by flexion to 30 degrees or less; moreover, the preponderance of the evidence weighs against a finding his meniscal tear caused frequent episodes of locking, pain, and effusion. 2. Beginning September 20, 2020, the preponderance of the evidence weighs against a finding the Veteran’s left knee disability was manifested by flexion to 15 degrees or less; moreover, the preponderance of the evidence weighs against a finding his meniscal tear caused frequent episodes of locking, pain, and effusion. 3. Throughout the appeal period, the preponderance of the evidence weighs against a finding the Veteran’s right knee disability was manifested by flexion to 30 degrees or less. 4. Throughout the appeal period, the preponderance of the evidence weighs against a finding the Veteran’s left knee disability was manifested by extension limited to 15 degrees or more. 5. Throughout the appeal period, the preponderance of the evidence weighs against a finding the Veteran’s right knee disability was manifested by extension limited to 15 degrees or more. 6. Prior to February 17, 2015, the preponderance of the evidence weighs in favor of a finding that the Veteran’s service-connected disabilities alone prevented him from obtaining or maintaining a substantially gainful occupation consistent with his education and experience. CONCLUSIONS OF LAW 1. Beginning October 18, 2011, and prior to September 20, 2020, the criteria for a rating in excess of 10 percent for a left knee disability based on limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5260. 2. Beginning September 10, 2020, the criteria for a rating in excess of 20 percent for a left knee disability based on limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5260. 3. Throughout the appeal period, the criteria for a rating in excess of 10 percent a right knee disability based on limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 4. Throughout the appeal period, the criteria for a 10 percent rating, but no higher, for a left knee disability based on limitation of extension have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5261. 5. Throughout the appeal period, the criteria for a 10 percent rating, but no higher, for a right knee disability based on limitation of extension have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5261. 6. Prior to February 17, 2015, the criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to June 1990 and from February 1991 to April 1991. These claims are on appeal from July 2009, August 2012, and June 2015 rating decisions. The Veteran testified at a May 2017 Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In January 2021, the Board sent a letter to the Veteran offering him the opportunity to testify at another optional Board hearing before another VLJ who would decide his case. The Veteran did not respond to that letter and it was not returned as undeliverable; therefore, the Board will proceed with adjudication of his case. The Board notes that in a September 2020 Supplemental Statement of the Case (SSOC), the AOJ listed entitlement to a rating in excess of 10 percent for left knee instability as one of the issues on appeal. Notably, neither the Board nor the AOJ has granted service connection for left knee instability and left knee instability is not noted on the most recent code sheet. Thus, the Board finds service connection for left knee instability must be REFERRED to the AOJ. Relevant Procedural History The Veteran’s claim for rating in excess of 10 percent for the left and right knees (based on limitation flexion under Diagnostic Code 5260) were first before the Board in October 2014 when they were remanded for additional development. In March 2017, the Board remanded the claims again to afford the Veteran a videoconference hearing, which was accomplished in May 2017. In February 2018, the Board denied ratings in excess of 10 percent for each of the knees under Diagnostic Code 5260 beginning August 1, 2007, and prior to October 18, 2011, and remanded the claims for higher ratings for each knee thereafter. The Board decision notes that ratings in excess of 20 percent for each knee beginning October 18, 2011, were remanded; however, in its February 2018 decision, the Board did not increase the knees to 20 percent disabling each beginning October 18, 2011, based on limitation of flexion; rather, ratings in excess of 10 percent beginning that date were remanded. The Board also denied an earlier effective date for the grant of right knee instability in its February 2018 decision, and that decision is final. Notably, while right knee instability was granted in an August 2012 rating decision, the Veteran did not disagree with the rating assigned for that knee, but rather only disagreed with the effective date. See October 2012 Notice of Disagreement. Moreover, when the right knee instability was increased from 10 to 20 percent disabling throughout the entire period in a September 2015 rating decision, the Veteran did not disagree with the rating assigned. Thus, entitlement to a rating in excess of 20 percent for right knee instability is not before the Board. Pursuant to the February 2018 remand directives, the Veteran was afforded examinations to evaluate the severity of his knees in July 2019 and September 2020. Thereafter, in a September 2020 rating decision, the AOJ increased the left knee degenerative joint disease with meniscal tear to 20 percent disabling effective September 10, 2020 (based on limitation of flexion); granted service connection for the bilateral knees based on limitation of extension, assigning a noncompensable rating for each knee effective September 10, 2020; and granted entitlement to TDIU effective February 17, 2015. Given that the grant of TDIU does not encompass the entire period on appeal, entitlement to TDIU prior to February 17, 2015, is properly before the Board. Based on the above, the Board finds there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Knee disabilities are rated under Diagnostic Codes 5256 through 5263. 38 C.F.R. § 4.71a. The various Diagnostic Codes that evaluate impairment resulting from knee disorders include 5256 (ankylosis), 5257 (other impairment, including recurrent subluxation or lateral instability), 5258 (dislocated semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage), 5260 (limitation of flexion), 5261 (limitation of extension), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum). Separate ratings may be assigned for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Under Diagnostic Code 5260, a noncompensable rating is warranted when flexion is limited to 60 degrees; a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a maximum 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Full knee flexion is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5261, a noncompensable rating is warranted when extension is limited to 5 degrees; a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a maximum 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full knee extension is to zero degrees. 38 C.F.R. § 4.71a, Plate II. 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); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). VA amended the criteria for rating musculoskeletal disabilities effective February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Significantly, the rating criteria for Diagnostic Codes 5260 and 5261 were not changed. Thus, any discussion of the regulatory changes pertaining to musculoskeletal disabilities is moot. Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Factual Background and Analysis At an October 18, 2011, examination, the examiner diagnosed bilateral knee degenerative joint disease and noted the Veteran reported his pain was progressively worse and occurred daily. The Veteran acknowledged flare-ups described as “increased shocking pain with standing and bending.” On examination, flexion of the bilateral knees was to 80 degrees extension of the bilateral knees was to 10 degrees. On repetitive use testing, there was no additional limitation of motion. The examiner described functional impairment of the bilateral knees as less movement than normal, weakened movement, excess fatigue, pain on movement, atrophy of disuse, incoordination/impaired ability to execute skilled movement smoothly, disturbance in locomotion, and interference with sitting, standing, and weight-bearing. Muscle strength testing was 1/5 bilaterally, representing palpable or visible muscle contraction but no joint movement. There was no evidence of patellar subluxation dislocation and instability testing for the left knee was normal. There was no evidence of meniscal conditions and it was noted the Veteran had not undergone any surgical procedures for his knees. The examiner indicated the Veteran’s knees affected his ability to work as he used to park trucks but stopped due to pain and instability. At a February 2015 examination, the Veteran reported bilateral knee pain, increased with driving, walking, standing, and squatting; he denied flare-ups. He indicated he was previously a commercial driver but was unable to tolerate this profession due to his knee pain. On examination, each knee demonstrated extension to zero degrees and flexion to 110 degrees; there was generalized tenderness of the knees, pain with weight-bearing, and the examiner noted pain caused functional loss. On repetitive use testing, range of motion was the same; the examiner indicated it would be mere speculation to express in terms of degrees of additional range of motion loss after repetitive use over time given that the Veteran was not examined after such. Muscle strength testing of the bilateral knees was normal and there was no ankylosis in either knee. Joint stability testing for the left knee was normal. See July 2015 Addendum Opinion. April 2015 magnetic resonance imaging (MRI) revealed a meniscal tear of the left knee. At his May 2017 hearing before the Board, the Veteran testified that his right knee had worsened, it felt like “bone to bone,” his mobility is “just gone,” and that this affects his ability to perform everyday activities such as walking working, and bending down to pick up his children. He stated he had received a brace and cane from his orthopedic doctor to aid in ambulation and described both knees as painful with less mobility. He further testified that it is difficult going from a seated position to a standing position and that when he does his knees crack and it feels like bone on bone. Regarding his left knee, he also indicated this condition was worse as he was overcompensating with his left knee because his right knee was worse. At a July 2019 examination, the Veteran reported constant knee pain with flare-ups. During flare-ups, he reported moderate difficulty sitting more than 20 or 30 minutes, moderate difficulty climbing stairs, moderate to severe difficulty in prolonged walking more than 100 yards, and severe difficulty standing not more than five to ten minutes. On examination, the bilateral knees demonstrated flexion to 100 degrees and extension to zero degrees. Repetitive use testing did not further limit range of motion. Muscle strength testing of both knees was normal and there was no ankylosis in either knee. Left knee joint stability testing was normal. It was noted the Veteran used bilateral knee braces for daily activity regularly and used a cane occasionally during flare-ups and with increased activity. The examiner noted that after listening to the Veteran’s medical history and subjective complaints that the examiner has “no basis to offer additional losses of function or motion” as it pertained to repetitive use or during a flare-up. At a September 2020 examination, the Veteran reported daily constant pain in the lateral and medial aspects to the knees with shaper pains going up and down his legs; he acknowledged daily swelling and popping. He reported decreased endurance with stair use, prolonged walking, sitting, and standing; he denied flare-ups. On examination, the left knee demonstrated flexion to 70 degrees and right knee flexion was to 80 degrees; extension was to 5 degrees bilaterally. There was no additional loss of range of motion on repetitive testing. Based on the Veteran’s statements, the examiner found that on repetitive use over time extension would remain the same at 5 degrees bilaterally, left knee flexion would be to 65 degrees, and right knee flexion would be to 75 degrees. Muscle strength testing revealed active movement against some resistance bilaterally and there was no evidence of muscle atrophy. Left knee joint stability was 1+ laterally and medially; posterior and anterior stability testing was normal. The examiner noted the Veteran was unemployed and that his bilateral knee condition affected his daily life due to decreased endurance with prolonged walking and standing. 1. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease prior to September 10, 2020 2. Entitlement to a rating in excess of 20 percent for left knee degenerative joint disease limitation of flexion with meniscal tear beginning September 10, 2020 3. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease limitation of flexion Prior to September 10, 2020, the criteria for ratings in excess of 10 percent for left and right knee degenerative joint disease have not been met. In order to receive the next higher 20 percent rating, the preponderance of the evidence must demonstrate flexion limited to 30 degrees or less. During this time, his left and right knee flexion has been, at worst, 80 degrees. See October 2011 VA examination. Further, considering additional limitation of motion due to flare-ups or repetitive use pursuant to DeLuca and Mitchell, supra, a September 2020 examiner estimated an additional loss of 5 degrees flexion, which would be 75 degrees. Even assuming that during flare-ups or on repetitive use that his flexion would be cut in half, at 40 degrees, this estimation still does not suffice to warrant the next higher 20 percent rating. Although at times the Veteran has reported flare-ups, and at other times he has not, he has not claimed any additional loss of range of motion on flare-ups. Rather, he merely described pain affecting his ability to ambulate. Moreover, beginning September 10, 2020, a rating in excess of 20 percent for left knee flexion with meniscal tear is not warranted. During this time, the Veteran’s left knee is rated pursuant to Diagnostic Codes 5258-5260. A hyphenated diagnostic code, such as this one, is used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5258 contemplates “cartilage, semilunar, dislocated, with frequent episodes of ‘locking,’ pain, and effusion into the joint.” Dislocated semilunar cartilage is more commonly known as a meniscus tear. Here, the Board finds a rating in excess of 20 percent is not warranted during this period. Significantly, in order to receive the next higher rating under Diagnostic Code 5260, his flexion must be shown to be limited to 15 degrees or less, and the preponderance of the evidence weighs against this finding. Moreover, separate ratings under Diagnostic Codes 5258 and 5260 are not warranted as the preponderance of the evidence does not demonstrate the Veteran experienced frequent episodes of locking, pain, and effusion into the joint. See 38 C.F.R. § 4.71a, Diagnostic Code 5258 (emphasis added). Similarly, prior to September 10, 2020, while the evidence did demonstrate dislocated semilunar cartilage (a meniscal tear found on a 2015 MRI), the preponderance of the evidence does not demonstrate the Veteran experienced frequent episodes of locking, pain, and effusion into the joint, and therefore, a rating under Diagnostic Code 5258 prior to then is not warranted. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against higher ratings based on Diagnostic Codes 5260 and 5258, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 4. Entitlement to a compensable rating for left knee limitation of extension 5. Entitlement to a compensable rating for right knee limitation of extension Following a thorough review of the evidence, the Board finds the Veteran’s left and right knee extension each warrant separate 10 percent ratings. Throughout the appeal period, his extension has varied, but has been, at worst, to 10 degrees, thus warranting a 10 percent rating. See October 2011 examination. At all other examinations, extension has been to zero degrees, which is considered normal. Further, considering additional limitation of motion due to flare-ups or repetitive use pursuant to DeLuca and Mitchell, supra, a September 2020 examiner estimated no additional loss degrees on extension. In order to receive the next higher 20 percent rating, extension must be shown to be limited to 15 degrees or more, which has not been demonstrated. Although at times the Veteran has reported flare-ups, and at other times he has not, he has not claimed any additional loss of range of motion on flare-ups. Rather, he merely described pain affecting his ability to ambulate. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against higher ratings than those assigned herein based on limitation of extension, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 56. Additional Considerations The preponderance of the evidence weighs against findings that the Veteran has experienced impairment of the tibia and fibula (Diagnostic Code 5262), genu recurvatum (Diagnostic Code 5263), or ankylosis (Diagnostic Code 5256) of the knees. Thus, these diagnostic codes are not for application. 6. Entitlement to TDIU prior to February 17, 2015 Legal Criteria Total disability ratings will be assigned “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.”  38 C.F.R. § 3.340 (a). TDIU may be assigned to a veteran who meets certain disability percentage thresholds and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.”  38 C.F.R. § 4.16 (a). An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). However, an award of TDIU requires that the claimant show an inability to undertake substantially gainful employment as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16 (b). The central inquiry is “whether [a] veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in determining whether unemployability exists, consideration must be given to a veteran’s level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16 (a). Where the percentage requirements for schedular TDIU are not met, TDIU may nevertheless be assigned on an extra-schedular basis when a veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities; however, the Board is precluded from assigning extra-schedular TDIU in the first instance. See 38 C.F.R. § 4.16(b); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Factual Background and Analysis In his February 2015 application for entitlement to TDIU, the Veteran indicated he was unable to obtain and maintain substantially gainful employment consistent with his education and experience due to his bilateral knees, neck, shoulders, and residuals of a traumatic brain injury (TBI). He stated he last worked for a vending machine company from December 2002 to April 2005 working 30 to 40 hours a week and indicated his highest level of education was completing two years of college. Records from the Social Security Administration (SSA) reflect the Veteran worked as a truck driver from June 2005 until June 7, 2008. During the appeal period, beginning August 1, 2007, and prior to February 17, 2015, the Veteran’s combined disability evaluations have been 60 percent beginning August 1, 2007, and prior to October 18, 2011, 70 percent beginning October 18, 2011, and prior to October 26, 2011, and 90 percent beginning October 26, 2011. During this time, he has been service-connected for the following disabilities: maxillary sinusitis (rated as noncompensable), scars of the bilateral knees (rated as noncompensable), a cervical spine disorder (rated as noncompensable), hemorrhoids (rated as noncompensable), degenerative joint disease of the bilateral knees (each separately rated as 10 percent disabling based on limitation of flexion), left shoulder rotator cuff tendonitis (rated as 20 percent disabling), valvular heart disease (rated as 30 percent disabling), residuals of a head injury with blurred vision and anxiety (rated as 10 percent disabling prior to January 14, 2015, and as 40 percent disabling thereafter), and migraine headaches (rated as 50 percent beginning October 18, 2011). Aside from the Veteran’s maxillary sinusitis, hemorrhoids, and valvular heart disease, all of his other service-connected disabilities arose from the same incident (a Hum-V accident) during active service. At a December 2007 examination, the Veteran indicated he was a warehouseman and forklift operator and that he missed approximately six months of work due to various chronic musculoskeletal pain issues in the last twelve months. He stated he was not a member of the union and that he would have been fired due to taking off too many days of work. He reported his current walking/standing tolerance was two hours or less. He stated he experienced daily mechanical neck pain with flare-ups four to five times a week. He complained of bilateral knee pain with frequent effusion and instability; he denied flare-ups of the knees. Regarding his left shoulder, he indicated he experienced daily pain and could feel his shoulder popping in and out of the joint all the time. At another December 2007 examination, the Veteran reported daily headaches and indicated he missed approximately 100 days of work in the past year, and stated approximately one-third to one-half of days missed were due to headaches; the examiner noted these headaches were more likely than not related to his residuals of a TBI. At a January 2008 orthopedic consultation, the Veteran sought treatment for bilateral knee and left shoulder pain. It was noted he was working as a driver. At a March 2008 follow-up appointment, the physician indicated the Veteran had been wearing an elastic wrap around the left shoulder as a stabilizer brace, which he reported had been helpful. At a May 2009 knees examination, the Veteran reported he was terminated from his last job as a truck driver due to his overall health condition and that he was unemployed; he acknowledged prior work as a warehouseman/forklift operator. In addition to his knee disabilities, he reported moderate to severe headaches daily. He stated his short-term memory had become progressively worse over the years and he has difficulty remembering basic information such as numbers, addresses, and names. At an October 2011 TBI examination, the Veteran reported daily headaches, which the examiner noted would affect his usual occupation and result in problems with work. The examiner also found the Veteran’s TBI had caused decreased concentration and poor social interactions. Notably, the Veteran did not take care of his own finances and his wife had a power of attorney to do so. At a January 2015 TBI examination, the examiner noted the Veteran reported headaches, anxiety, and irritability; neurological diagnostic testing revealed a slight amorality with deficits in attention, immediate recalls, and visuospatial function. At a January 2015 headaches examination, the Veteran stated his headaches affected his ability to concentrate. The Veteran’s primary pain involves his bilateral knees (left worse than right) and his left shoulder. He experiences insomnia and memory difficulties due to his residuals of a TBI with anxiety and his pain medication affects his ability to concentrate and his work productivity. During the time in question, he has experienced headaches at the very least a few times a week and at most daily. VA treatment records reflect the Veteran has indicated his pain affects his ability to sleep, physical activity, work productivity, and relationships with others. See, e.g., December 2007 VA treatment note. Moreover, his pain medication has the tendency to make him fatigued. Based on the foregoing, with consideration of the Veteran’s education, training, and experience, the preponderance of the evidence weighs in favor of a finding his service-connected disabilities alone prevented him from obtaining or maintaining a substantially gainful occupation prior to February 17, 2015. The AOJ will set the effective date of the grant for TDIU, as this preserves the Veteran’s right to appeal. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.