Citation Nr: 21024271 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-22 395A DATE: April 22, 2021 ORDER Entitlement to a rating in excess of 30 percent for left knee strain is denied. Entitlement to a rating in excess of 10 percent for left knee instability is denied. Effective September 22, 2015, but not earlier, entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran’s left knee strain is rated as 30 percent disabling, which is the maximum schedular rating permitted for limitation of flexion of the leg. The Veteran has never shown any limitation of extension. 2. The Veteran’s left knee instability has been manifested by no worse than slight instability. 3. Prior to September 22, 2915, the Veteran’s service-connected disabilities did not prevent him from finding and maintaining substantially gainful employment. 4. Resolving all doubt in the Veteran’s favor, the evidence shows that his service-connected disabilities precluded him from securing and following substantially gainful employment as of September 22, 2015. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5260, 5261. 2. 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. 3. Prior to September 22, 2015, the criteria for referral for consideration of the award of TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 4. Effective September 22, 2015, the requirements for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1974 to March 1976 and from February 1979 to December 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and January 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a Travel Board hearing before a member of the Board in May 2013. A transcript of the hearing is of record. The Veterans Law Judge (VLJ) who conducted the hearing is no longer available to participate in this appeal. By way of an October 2020 letter, the Veteran was notified of such, and was offered the opportunity to have a new hearing. The Veteran did not respond to the letter within 30 days, and therefore the Board will proceed with adjudication. The instant matters were previously remanded by the Board in February 2014, February 2017, and October 2018. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 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 evaluations shall be applied, 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that, during the pendency of the appeal, VA revised the rating criteria for Diagnostic Code 5257, effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal if they are more favorable. The revised criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the former rating criteria, a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability of the knee; and the maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. Effective February 7, 2021, Diagnostic Code 5257 was revised. Under the revised rating criteria, a 10 percent disability is warranted for: sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker or bracing for ambulation. Alternatively, a 10 percent rating is also 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. A 20 percent disability rating is warranted for one of the following: a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribed a brace and/or assistive devise (e.g. cane(s), crutch(es), walker for ambulation; or b) 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 20 percent disability rating is also 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, cane, or walker. A 30 percent disability rating is warranted for unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribed both an assistive device (e.g., cane(s), crutch(es), walker). Alternatively, a 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (effective February 7, 2021). Note (1) to Diagnostic Code 5257 indicates that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) indicates that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion of the knee limited to 30 degrees; and a 30 percent rating is warranted for flexion of the knee limited to 15 degrees. Id. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension of the knee limited to 15 degrees; a 30 percent rating is warranted for extension of the knee limited to 20 degrees; a 40 percent for extension of the knee limited to 30 degrees, and 50 percent for extension of the knee limited to 45 degrees. Id. The Board observes that the words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. The Veteran contends that he is entitled to higher ratings for his service-connected knee disabilities. By way of relevant history, the present appeal stems from a January 2009 increased rating claim. A December 2009 rating decision decreased the rating for the Veteran’s left knee strain (rated pursuant to Diagnostic Code 5261-5260) from 30 percent disabling to 10 percent disabling. The Veteran timely disagreed. In a January 2013 rating decision, the RO increased the rating to 30 percent disabling effective April 11, 2012. A February 2014 Board decision restored the 30 percent rating for the time period from March 1, 2010 through April 10, 2012. Accordingly, the Veteran is in receipt of a 30 percent rating for his left knee strain throughout the entirety of the appeal period. Service connection for left knee instability was granted in an October 2009 rating decision and assigned a 10 percent rating, effective January 14, 2009, pursuant to Diagnostic Code 5257. The Veteran’s left knee strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260-5261, for limitation of flexion and extension of the leg. As the Veteran is in receipt of the highest schedular rating for limitation of flexion of the leg for the entirety of the appeal period, there is no basis to award a higher evaluation under Diagnostic Code 5260. The Board finds that the preponderance of the evidence is against an award of a separate compensable rating pursuant to Diagnostic Code 5261 for the Veteran’s left knee strain. In this regard, the Veteran demonstrated full left knee extension at August 2009, December 2014, November 2015, March 2017, August 2017, and September 2020 VA examinations (the Board notes that the Veteran underwent a VA examination in February 2009 but the measurements were deemed to be inaccurate and a new examination was scheduled, see July 2009 VA Report of Contact). While flexion was shown over the years to be limited after repetitive use or during a flare-up, extension was never shown to be limited. Accordingly, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of any additional limitation would not result in limitation of motion more nearly approximating extension limited to 10 degrees, which would be required for a separate compensable rating under Diagnostic Code 5261. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for left knee strain under Diagnostic Code 5260 or 5261. 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. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Insofar as the evidence does not show that the Veteran has ever experienced left knee ankylosis, any meniscal conditions, impairment of the tibia and fibula, or genu recurvatum, separate or higher ratings under Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not warranted. The functional equivalent of ankylosis during flare-ups or after repetitive use is also not shown. See Chavis v. McDonough, ___ Vet. App. ___ (Apr. 16, 2021). As noted above, the Veteran is in receipt of a separate, 10 percent rating for left knee instability. The Veteran’s left knee instability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s left knee instability. Indeed, the most probative evidence of record demonstrates that the Veteran’s lateral instability was no more than mild. While the Veteran reported in February 2009 that his left knee locked up and the Veteran told a VA provider that his knee locked while driving (as referenced by the Veteran’s representative in March 2021 correspondence), December 2014 and November 2015 VA examiners indicated that the Veteran had no history of recurrent subluxation or lateral instability, the Veteran did not report experiencing any instability at either examination, and all joint stability testing was normal. Similarly, all joint stability testing at a March 2017 VA examination was normal, and the Veteran did not report symptoms of instability. He reported pain only. At the Veteran’s most recent September 2020 VA knee examination, the examining clinician indicated that the left knee instability had resolved. As for the new rating criteria, the evidence of record fails to demonstrate a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescription for a brace or assistive device for ambulation; or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. While the evidence shows that the Veteran uses a cane and a brace, there is no evidence that such is due to a ligament tear or patellofemoral condition. Thus, higher ratings are not warranted under Diagnostic Code 5257 under the new rating criteria at any point during the appeal period. To the extent the Veteran’s representative has argued in a March 2021 written brief that the September 2020 examiner did not address the apparent inconsistency of the finding of no left knee instability on examination with the Veteran’s reported use of a cane, the Board notes that the September 2020 examiner specifically performed joint stability testing and found that there was no joint instability. Nevertheless, the Board notes that the Veteran is in receipt of a 10 percent rating for his left knee instability, based on his lay statements and use of a cane, such that any apparent discrepancy between the examination findings and the Veteran’s reported use of a cane has been resolved by the assignment of a compensable rating for instability. Finally, to the extent the Veteran’s representative suggesting in a March 2021 written brief that extraschedular ratings were potentially warranted for the Veteran’s knee conditions, the Board has considered this argument and has concluded that no such referral is warranted. The Veteran’s reduction in functioning resulting from his knee conditions is fully contemplated by the applicable schedular criteria, which contemplates the chronic pain, locking, and instability symptoms cited by the Veteran and his representative. There is nothing in the record to suggest that his knee disabilities are so exceptional or unusual as to render impractical the application of these regular standards, and neither the Veteran nor his representative has identified any symptoms that are not otherwise contemplated by the schedular criteria. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321; Thun, 22 Vet. App. at 111. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for left knee instability. 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. TDIU The Veteran contends that his service-connected disabilities have precluded him from securing and following substantially gainful employment. Under the applicable criteria, 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. In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experiences, but not to her 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 for compensation purposes may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). A February 2014 Board decision found that the record had raised an implied claim for TDIU as part and parcel of the Veteran’s increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran filed an application for a TDIU in July 2015, indicating that he last worked in 1996. For the period prior to September 22, 2015, the Veteran did not meet the schedular criteria for a TDIU. He had a combined schedular rating of 40 percent from January 14, 2009. During that time period, his service-connected disabilities included left knee strain, left knee instability, and left knee residual scar. Therefore, for the time period prior to September 22, 2015, the Board must consider whether it would be appropriate to refer the Veteran’s claim for a TDIU to the Director of Compensation Service for extraschedular consideration. From September 22, 2015, the Veteran has met the schedular eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a), as he is in receipt of a 70 percent rating for major depressive disorder, a 30 percent rating for left knee strain, a 10 percent rating for left knee instability, and a noncompensable rating for left knee scar. His combined rating is 80 percent. For the reasons that follow, the Board finds that the evidence demonstrates that the Veteran’s service-connected disabilities have prevented substantially gainful employment from September 22, 2015, but no earlier. The record shows that the Veteran completed 11th grade and then enlisted. He completed a General Educational Development (GED) while in service. While the Veteran stated in his July 2015 application for a TDIU that he last worked in 1996 as a kitchen helper, on an April 2005 claim for benefits, the Veteran wrote that he worked as a security officer from May 1996 to May 2000 and as a service master from June 2000 to May 2002. At a VA treatment appointment in May 1997, the Veteran told his provider that he was working with a security company and doing well, and had been asked to take on a supervisory role but had turned it down. At a June 2005 VA examination, the Veteran reported that he was unemployed and further told the examiner that he was on disability due to a low back injury and surgery for a lumbar disc herniation. He reported left knee pain that was worsened with prolonged standing and walking but did not prevent climbing or bending. Medical records include a psychosocial assessment conducted in September 2005, after the Veteran self-referred for treatment due to depression and anxiety after losing his job. The examining clinician reported that the Veteran had last worked in 2003 and left his job due to illness. Social Security Administration (SSA) records were obtained by VA in April 2012. An August 2005 disability determination found that the Veteran became too disabled to work as of January 1, 2004, due to his primary diagnosis of lumbar radiculopathy secondary to lumbar disc herniation, and his secondary diagnosis of cervical radiculopathy secondary to cervical disc herniations. In the Veteran’s completed medical history appended to the disability determination, he wrote that it was “my back that causes my limitations,” and specifically noted that his activities of daily living were limited due to his back disabilities. An August 2006 treatment note reflects the Veteran’s statements that he had a long history of back pain resulting in falls, his leg giving out, and the need for a cane. In May 2007, the Veteran told a VA examiner that he could no longer work due to his left knee condition. At a February 2009 VA examination, the examiner noted that the Veteran used to work at a restaurant, and that it would be impossible for him to perform that occupation given his left knee. At an August 2009 VA examination, the examiner opined that the Veteran’s left knee condition would have a moderate to severe effect on his employment capacity given his limitations. The Veteran told a VA provider in October 2009 that his back was so painful that he had to stay in bed for a month. Medical treatment records in the file show that the Veteran had previously undergone disc herniation surgery in March 2004. In an April 2012 statement, the Veteran wrote that he was unemployable as a result of his back and knee injuries. At an August 2012 VA examination, the Veteran told the examiner he had last worked as a cook and could not stand or walk for any period of time and was therefore unable to work. The examiner wrote that it was unclear if he worked for any extended period of time for the past 30 years, and that it was unclear whether such was solely due to his left knee. At a December 2014 VA examination, the examiner opined that the Veteran was “definitely not able to do a physical job because of his left knee,” but that he would be able to do a sedentary job that allowed him to stand up and stretch his left knee a few times an hour. At a November 2015 VA knee examination, the examining clinician indicated that the Veteran’s left knee condition precluded him from an occupation requiring kneeling, squatting, constant uninterrupted sitting, extensive or prolonged standing, walking, stairclimbing, or lifting and/or carrying heavy loads. The examiner added that the Veteran would nevertheless be reasonably expected to function in a sedentary capacity. The Veteran reported at a December 2015 VA mental disorders examination that he was not employed and had not been gainfully employed since 1996 when he worked as a kitchen helper at a restaurant, a position from which he quit due to severe knee and lower back pain. Based on this examination report, the AOJ based the award of a 70 percent rating for major depressive disorder, effective September 22, 2015, on a finding that the Veteran suffered from symptoms including mild memory loss, forgetfulness, difficulty in adapting to work and stressful circumstances, and difficulty in adapting to a worklike setting. At a March 2017 VA knee examination, the examiner indicated that the left knee prevented the Veteran from standing for more than 5 minutes, running, kneeling, squatting, walking more than half a mile, or carrying more than 20 pounds of weight. The examiner opined that the Veteran could perform mild physical work and sedentary work, both without restrictions. An August 2017 VA examiner opined that the Veteran was limited in prolonged walking or standing due to knee pain. A September 2020 VA knee examiner indicated that the Veteran was limited in tasks of standing, walking, kneeling, and squatting, and wrote that with accommodations, such as seated work, the Veteran could safely function in an occupational environment. VA treatment records show ongoing and long-term treatment for pain related to his knee injury and depression. Upon review of the Veteran’s education and prior work history, and upon review of the Veteran’s disability picture as a whole, the Board concludes that his service-connected conditions—specifically his left knee and major depressive disorder, in combination—would preclude him from securing or following gainful employment, even in a sedentary capacity, for all times since the Veteran was awarded service-connection for his depression (i.e., September 22, 2015 to the present). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. Webster’s II New College Dictionary 999 (1999). Indeed, the evidence shows that the Veteran’s knee disabilities would largely preclude manual labor employment, and his depression would prevent gainful employment in a non-labor, or seated capacity, where significantly less physical work would be required. Accordingly, the Board finds that the preponderance of the evidence demonstrates that the Veteran is unable to secure and follow a substantially gainful occupation, in either a physical or sedentary capacity, due to his service-connected mental and physical disabilities in combination. TDIU is granted, effective September 22, 2015. That stated, the Board finds that for the period prior to September 22, 2015, the Veteran’s service-connected disabilities alone, which consisted of his left knee disabilities exclusively, did not prevent him from securing or following substantially gainful employment. The Board certainly acknowledges that the Veteran experienced significant left knee issues during that period. However, the medical evidence, as well as SSA records, show that it was his nonservice-connected back condition that appeared to be the cause of the Veteran’s work stoppage in 2002 or 2003. He was deemed disabled by SSA as of 2004 due exclusively to his back and neck conditions, and by his own self-reporting at that time, it was his back condition that limited his activities, and not his knee. A September 2005 psychosocial evaluation also noted that the Veteran reported, at that time, depression, anxiety, crying spells, and feelings of hopelessness and helplessness, “no energy or motivation to do anything,’ and insomnia on account of losing his job two years prior due to injury, and that he was at that time “unable to work.” Thus, it appears that psychiatric symptoms also played a key role in preventing employment, which were not service-connected at the time. Insofar as the Veteran has more recently explained to VA adjudicators and VA examiners he had to stop working due to his service-connected knee disability, the Board finds such statements to be less probative than his more contemporaneous representations to treating physicians and the SSA. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Notwithstanding the indication in the record that nonservice-connected disabilities played a significant role in the Veteran’s decision to stop working in the early 2000s, the Board acknowledges the Veteran’s assertions that his service-connected knee disabilities ultimately became so severe as to prevent gainful employment at times since hs stopped working. Crucially however, the Board observes that at no point prior to, or after September 22, 2015 has any examiner or treating physician indicated that the Veteran would be precluded from all forms of gainful employment due to his left knee disabilities alone. While the question of unemployability is one of fact reserved for the Board, the Board finds it significant that several medical experts have assessed the Veteran’s knee, and observed that the Veteran’s knee disability was not so severe as to prevent working in a seated environment. Indeed, the Veteran’s service-connected knee disabilities have not prevented the Veteran from sitting, so long as he is able to stretch his leg every so often. Although the Veteran has only a high school education, his work history shows that he was at one point asked to perform supervisory duties at a security company, strongly suggesting he has training and skills that can be transferred to a non-manual labor work environment. As the Board cannot consider the disabling effects of service-connected depression prior to September 22, 2015 (which, as discussed above, coupled with the Veteran’s orthopedic disabilities would in fact prevent employment in both a manual labor and non-manual labor environment), the Board finds that the disabling effects of his service-connected disabilities prior to September 22, 2015, which consist only of his left knee disabilities, did not prevent the Veteran from securing or following gainful employment. In sum, there is sufficient evidence to find that the Veteran’s service-connected disabilities, in combination, prevented him from securing and following a substantially gainful occupation as of September 22, 2015. A TDIU is granted as of that date. Prior to September 22, 2015, the weight of the evidence shows that the Veteran’s service-connected disabilities did not prevent him from securing or following gainful employment, and referral of the Veteran’s claim to the Director of Compensation Service for extraschedular consideration for that time period is not warranted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.