Citation Nr: 21025988 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-30 832 DATE: April 29, 2021 ORDER Entitlement to service connection for a spine disability, claimed as secondary to service-connected disability, is denied. Entitlement to an effective date earlier than March 17, 2016 for the grant of service connection for right knee arthritis is denied. Entitlement to an effective date earlier than March 17, 2016 for the grant of service connection for left knee total arthroplasty is denied. Entitlement to a rating in excess of 10 percent for limitation of motion due to the right knee arthritis prior to June 28, 2016 is denied. Entitlement to a 60 percent rating from August 1, 2017 to January 30, 2018, and since July 20, 2020, for right knee total arthroplasty is granted, subject to the statutes and regulations governing the payment of compensation; a rating in excess of 30 percent from January 30, 2018 to July 20, 2020, so in the interim, is denied. Entitlement to a separate 10 percent rating for right knee instability from March 17, 2016 to June 28, 2016 is granted, subject to the statutes and regulations governing the payment of compensation. Entitlement to a rating in excess of 10 percent from March 17, 2016 to December 4, 2019, and in excess of 30 percent since February 1, 2021, for the left knee total arthroplasty is denied. Entitlement to a separate 10 percent rating for left knee instability from March 17, 2016 to December 4, 2019 is granted, subject to the statutes and regulations governing the payment of compensation. Entitlement to an initial compensable rating for a right knee scar is denied. Entitlement to an initial compensable rating for a left knee scar is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The most probative (competent and credible) evidence is against finding that the Veteran has a back/spine disability owing to his service – including that was caused or is aggravated by a service-connected disability. 2. There is no legal basis for an effective date earlier than March 17, 2016 for the grant of service connection for his right knee arthritis and/or left knee arthritis or arthroplasty. 3. He did not have right knee extension limited to greater than 10 degrees, or flexion limited to 60 degrees or less, prior to June 28, 2016. 4. It is just as likely as not, however, he had other chronic residuals consisting of severe painful motion or weakness in his right knee from August 1, 2017 to January 30, 2018, and from July 20, 2020 to the present; but his residuals were only comparatively intermediate from January 30, 2018 to July 20, 2020. 5. It is just as likely as not he had mild instability of his right knee, though no greater, from March 17, 2016 to June 28, 2016.   6. Prior to December 4, 2019, his left knee was not limited in extension to 15 degrees or greater, or limited in flexion to 60 degrees or less; since February 1, 2021, it has not been shown he has chronic, post-operative residuals consisting of severe painful motion or weakness of this knee. 7. It is just as likely as not he had mild instability of his left knee, though no greater, from March 17, 2016 to December 4, 2019. 8. The most probative evidence is against finding that he has knee scars that are painful, unstable, cause functional impairment, and/or are at least six square inches in size. 9. The most probative evidence of record is against finding that his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for a spine/back disability, claimed as secondary to service-connected disability. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.304, 3.307, 3.309, 3.310. 2. The criteria are not met for an effective date earlier than March 17, 2016 for the grant of service connection for right knee arthritis and/or left knee arthritis. 38 U.S.C. § 5110, 5107; 38 C.F.R. §§ 3.155, 3.156, 3.400. 3. The criteria are not met for a rating in excess of 10 percent for limitation of motion due to right knee arthritis prior to June 28, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 4. The criteria are met for a 60 percent rating from August 1, 2017 to January 30, 2018, and since July 20, 2020 for right knee total arthroplasty; the criteria are not met for a rating in excess of 30 percent from January 30, 2018 to July 20, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5260, 5055. 5. The criteria are met for a separate 10 percent rating for right knee instability from March 17, 2016 to June 28, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 6. The criteria are not met for a rating in excess of 10 percent from March 17, 2016 to December 4, 2019, and in excess of 30 percent since February 1, 2021, for left knee total arthroplasty. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5261, 5055. 7. The criteria are met for a separate 10 percent rating for left knee instability from March 17, 2016 to December 4, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 8. The criteria are not met for an initial compensable rating for the right knee scar. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. 9. The criteria are not met for an initial compensable rating for the left knee scar. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802. 10. The criteria are not met for a TDIU. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18, 4.19.  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to August 1989. In an April 2020 rating decision during the pendency of this appeal, the local Regional Office (RO) granted a 100 percent rating as of December 4, 2019, and a 30 percent rating as of February 1, 2021, for left knee total arthroplasty. The RO also granted special monthly compensation (SMC) based on housebound criteria from December 4, 2019 to February 1, 2021. In response, the Veteran subsequently filed a VA Form 20-0996, Request for Higher Level Review (HLR).   The Appeals Modernization Act (AMA) applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. A rating decision granting a higher rating for a disability that is the subject of a pending legacy appeal for an increased rating is not an initial decision and, therefore, is not appealable under the AMA. However, as the rating for the Veteran’s left knee disability already was on appeal based on a VA Form 9, Substantive Appeal to the Board, submitted in 2019, the claims remain in the prior “legacy” docketing system. And, in a claim for an increased rating, the claimant generally will be presumed to be seeking the maximum benefit allowed by law and regulation; therefore, a claim remains in appellate status where less than the maximum available benefit is awarded. In other words, assignment of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection 1. Entitlement to service connection for a spine (back) disability The Veteran contends that he has a lumbar spine disability secondary to his service-connected bilateral (left and right) knee disabilities. In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, certain “chronic” diseases (including degenerative joint disease, i.e., arthritis) will be presumed to have been incurred in service, absent an intervening (“intercurrent”) cause, if they were shown as chronic in service or if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a presumptive period following separation from service (which is one year for arthritis), or if they were noted in service (or within the applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). According to 38 C.F.R. § 3.310, service connection may be granted, as well, on a secondary basis for disability that is proximately due to or the result of a service-connected disability or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A March 2016 VA Initial Outpatient visit record is unremarkable for back pain, despite noting bilateral knee pain complaints. Regarding his gait, it was noted the Veteran has balance problems identified as muscle weakness and gait deficit. An October 2016 VA clinical record indicates the Veteran stated that he “has been having lower back pain x 2 months …started after Right knee replacement.” He had right knee arthroplasty on June 28, 2016. He reported that his pain had started on the right side of his back and radiated across his entire back area. A November 2016 addendum indicates X-ray showed only relatively mild arthritis in his back. VA clinical records dated in 2017 note continued complaints of back pain. A November 2017 record explains the Veteran ambulates with mildly decreased stride length and decreased stance but does not reflect that he has a limp affecting his back. A December 2017 physical therapy note mentions he reported that his low back was doing better, overall, and was more affected by tightness than pain. A contemporaneous November 2017 Disability Benefits Questionnaire (DBQ) contains the opinion of the examiner that the Veteran’s back disability was not due to his knee disabilities. The examiner stated, in pertinent part, as follows: Although there is a slight genetic component to individuals who suffer from DDD [degenerative disc disease], the true cause is probably multifactorial. It could be from simple wear and tear or may have a traumatic cause. However, it rarely starts from a major trauma such as a car accident. It is most likely due to a low energy injury to the disc that progresses with time. The disc itself does not have a blood supply, so if it sustains an injury it cannot repair itself the way other tissues in the body can. An otherwise insignificant injury to the disc can start a degenerative cascade whereby the disc wears out. Despite its rather dramatic label, degenerative disc disease (DDD) is fairly common, and it is estimated that at least 30% of people aged 30-50 years old will have some degree of disc space degeneration, although not all will have pain or ever receive a formal diagnosis. In fact, after a patient reaches 60, some level of disc degeneration is a normal finding on an MRI scan, rather than the exception. Lumbar DDD Causes. The low back pain associated with lumbar degenerative disc disease is usually generated from one or both of two sources: 1. Inflammation, as the proteins in the disc space irritate the surrounding nerves - both the small nerve within the disc space and potentially the larger nerves that go to the legs. 2. Abnormal micro-motion instability, when the outer rings of the disc, called the annulus fibrosus, are worn down and cannot absorb stress on the spine effectively, resulting in movement along the vertebral segment. Excessive micro-motion, combined with the inflammatory proteins, can produce ongoing low back pain. Also, of record is a January 2018 DBQ wherein the Veteran stated that his back pain had started in 2016, which he associated with limping from his right knee arthritis. However, the examiner found it less likely than not that the Veteran’s back disability resulted from his left and/or right knee disabilities. The examiner stated, in pertinent part, as follows: Based on review of medical record, medical literature and clinical experience, there is also no literature support for knee problem causing degenerative changes in the lumbar spine. Primary [as opposed to secondary from trauma] degenerative changes in joints, whether in the lumbar spine or knee, are usually age-related and accentuated by weight gain/heavy weight lifting. Veteran is obese with BMI [body mass index] > 38. Extra weight can put more pressure and wear on joints. Also, arthritic changes in joints are seen after age 40. There is no medical literature supports that osteoarthritis in one joint causes arthritic changes in another. Clearly, being overweight increases the load placed on the joints such as the knee, which increases stress and could possibly hasten the breakdown of cartilage/disc of the spine. Both medical opinions are probative and against the notion that the Veteran has a back disability causally related to, or aggravated by, a service-connected disability. There is no competent and credible evidence that his back disability, which has been described as relatively mild, is aggravated by the service-connected disabilities affecting his knees and feet. VA will not concede that a nonservice-connected disability is aggravated by a service connected disability unless the baseline level of severity of the nonservice-connected disability is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disability. See 38 C.F.R. § 3.310(b). VA has determined that obesity is not a ratable disability for service connection or secondary service connection compensation purposes. However, obesity may act as an "intermediate step" between a service-connected disability and a current disability for which secondary service connection may be established. See VAOPGCPREC 1-2017 (Jan. 6, 2017). It was noted that, under 38 C.F.R. § 3.310(a), a disability that is proximately due to or the result of a service-connected disease or injury is service connected and that "proximate cause" had been defined by Black's Law Dictionary, 213 (7th ed. 1999), as a "cause that directly produces an event and without which the event would not have occurred." As such, VA must resolve: (1) whether a service-connected disability caused a Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. More recently, in Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court again addressed the holding of VAOPGCPREC 1-2017 (Jan. 6, 2017) that obesity can constitute an "intermediate step" in showing secondary service connection, i.e., that service connection is warranted when a service-connected disability causes obesity that, in turn, causes another disability. General Counsel (GC) opinions are binding on the Board but not on the Court. Here, however, the claims file does not contain probative evidence tending to support any notion that the Veteran has a service-connected disability that has caused him to become obese or that his claimed spine disability would not have occurred but for obesity caused by a service-connected disability. Moreover, neither he nor his attorney has made any such allegation. Aside from that, although a September 2016 record notes a mildly antalgic gait three months after the Veteran’s knee replacement surgery, subsequent records instead note a normal gait (e.g., November 2019, July 2020, October 2020). And the determination of whether his service-connected disabilities affecting his knees and feet are causing or aggravating his back disability is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Finally, the most persuasive evidence of record does not tend to indicate that it alternatively is as likely as not that service connection is warranted on direct or presumptive incurrence bases because the Veteran did not have chronic complaints in service, nor continuity of symptoms since service, nor manifestation of arthritis to a compensable degree within a year following his separation from service. There also is no probative evidence otherwise tending to relate or attribute his spine disability to his service. See 38 C.F.R. § 3.303(d). For these reasons and bases, service connection for the Veteran’s spine disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Effective Date 2. Entitlement to an effective date earlier than March 17, 2016 for the grant of service connection for right knee arthritis AND 3. Entitlement to an effective date earlier than March 17, 2016 for the grant of service connection for left knee total arthroplasty. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations apply to claims filed on or after March 24, 2015, so including these claims at issue, and do not allow for compensation claims to be based on hospital treatment records but require the actual filing of the correct form designated by the Secretary of VA. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In a February 2004 rating decision, the RO considered and denied the Veteran’s claim for service connection for bilateral (left and right) knee disability manifested by chronic knee pain. He was duly notified of that decision in a February 2004 letter, but he did not in response file a timely Notice of Disagreement (NOD), and new and material evidence was not received within one year of him receiving notification of that decision. Therefore, the decision became final and binding on him based on the evidence then of record. 38 C.F.R. § 20.1103. On a VA Form 21-526 (Application for VA Compensation or Pension Benefits), subsequently received by VA in July 2007 – so more than a year later, the Veteran again claimed entitlement to service connection for a knee disability. He wanted the claim reopened based on new and material evidence. In a December 2007 rating decision, however, the RO found that new and material evidence had not been received, so the claim was not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Veteran was duly notified of that decision in a December 2007 letter, and he again did not in response file a timely NOD, now was new and material evidence received within one year of him receiving notification of that decision. Therefore, that decision also became final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Although there is mention of service treatment records (STRs) received in 2016, the initial February 2004 rating decision indicates they already had been associated with the claims file even at the time of that initial decision. Thus, these records were in the file at the time of the RO's initial adjudication of the claim, in turn, meaning an earlier effective date predicated on 38 C.F.R. § 3.156(c) is not warranted because this subpart of this VA regulation does not apply to the facts and procedural history of this case. Rather, correspondence reflects that, on March 17, 2016, VA received the Veteran’s Intent to file a claim for compensation. In April 2016, so the following month, VA received his official claim form, VA 21-526 EZ (Application for Disability Compensation and Related Compensation Benefits), on which he affirmed that he was requesting service connection for bilateral knee osteoarthritis. These claims since have been granted as of that date. If, as here, the Veteran did not timely appeal earlier decisions considering and denying these same claims, then the earliest possible effective date he may receive is when he later files his most recent petition to reopen these claims, which was on March 17, 2016. See Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000).   The Court held in Sears v. Principi, 16 Vet. at 248, that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Rather, for the Veteran to be awarded an effective date based on an earlier claim, he must show clear and unmistakable error (CUE) in the prior denial of the claim. See Flash v. Brown, 8 Vet. App. 332, 340 (1995). Neither the Veteran nor his attorney has provided adequate argument or evidence as to why an effective date earlier than March 17, 2016 is warranted in the circumstances presented, including on the premise of CUE in the prior decisions considering and denying these same claims that were not appealed. CUE must be plead with specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). Since, for these reasons and bases, the preponderance of the evidence is against these earlier effective date claims, the benefit of the doubt rule is not applicable, and these claims must be denied. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee joint, have been revised during the pendency of this appeal. When changes take effect during the pendency of a Veteran’s appeal, both the former and revised criteria are for consideration in evaluating a disability. However, in this case at hand, the initial knee disabilities, which were considered under Diagnostic Codes 5260 and 5261 pertaining to limitation of knee flexion and extension, have been rated instead under DC 5055 since the Veteran’s knee replacement surgeries, and his instability, which the Board is additionally finding, is separately rated under Diagnostic Code 5257. Moreover, when an increased rating is warranted under the revised criteria, the award may not be made effective before the effective date of the change. See Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991), Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to the regulatory change, Diagnostic Code 5055 provides that prosthetic replacement of a knee joint is evaluated as 100-percent disabling for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. As of February 7, 2021, under the amended criteria for Diagnostic Code 5055 (for knee replacement, prosthesis), a 100 percent rating is assigned for 4 months following implantation of prosthesis or resurfacing. An evaluation for 60 percent is assigned for prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, rate by analogy to Diagnostic Codes 5256, 5261, or 5262. A minimal evaluation for total knee replacement is 30 percent. Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for this “other” impairment of the knee – including owing to recurrent subluxation or lateral instability if slight, moderate, or severe, respectively. Because any instability after the Veteran’s surgeries is considered under DC 5055, the new regulations regarding instability under DC 5257 are not dispositive. 4. Entitlement to increased ratings for the right knee arthritis, rated as 10-percent disabling from March 17, 2016 to June 28, 2016, and for right knee total arthroplasty, rated as 100-percent disabling from June 28, 2016 to August 1, 2017, and as 30-percent disabling since. In an August 2017 rating decision, the RO granted service connection for right knee arthritis evaluated as 10-percent disabling from March 17, 2016 to June 28, 2016 under DC 5260, as 100-percent disabling from June 28, 2016 to August 1, 2017 to account for the total right knee replacement with prosthesis, and as 30-percent disabling since following cessation of that temporary total rating. March 17, 2016 to June 28, 2016 The Veteran would be entitled to a higher rating for his right knee disability under DC 5260 if he had flexion limited to 30 degrees (20 percent) or to 15 degrees (30 percent). To give this some context, consider that normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. The Board has considered the history of the disability as it may be relevant. A January 2016 record (Dr. H.S.) reflects that the Veteran had bilateral knee pain. He had been injected with medication in both knees as treatment. It was noted that he had full range of motion and good stability at his last visit. Crutches were ordered and the Veteran was given prednisone. February 2016 private records (Jacksonville Orthopaedic Institute–University) record reflects that the Veteran reported pain, swelling, trouble with steps, giving way, limping, and that he cannot walk more than 100 feet. Upon examination, he had 1+ effusion, but all stability tests were negative for instability. He was noted to lack 5 degrees of extension. There was no notation as to any loss of flexion. The Veteran reported that pain is a 7 out of 10 and is aching, intermittent, and related to activity. A March 2016 CareSpot prescription note reflects that the Veteran was to have an MRI of the right knee without contrast due to persistent right knee pain and internal derangement. Another March 2016 record reflects that the Veteran had been seen on March 30, 2016 and could return to work on April 1, 2016 (i.e., he was excused from two days of work). An April 2016 record from Dr. M. Lincoln reflects in pertinent part as follows: Clinical and radiologic findings were discussed at length with the patient. The patient has failed conservative treatment and the symptoms are limiting the activities of daily living. It does not appear that non-operative treatment will improve the condition. Another April 2016 record notes that he has a limp on both sides with full weight bearing and no assistive devise. He had mild swelling, moderate effusion, tenderness on palpation. All tests for laxity and a meniscal disability were negative. An April 2016 Southeast record reflects that the Veteran had bilateral (right greater than left) knee pain, with increasing pain over the last four months. He reported difficulty walking greater than two blocks without pain, climbing stairs, or standing for prolonged periods of time. He had received cortisone injections in January and Synvisc One injections in March which provided only minimal temporary pain relief (3 weeks and one month respectively). He also was prescribed diclofenac, and he works out regularly for strengthening and mild pain relief. The pain severity level was noted to be a 5 and noted to occur intermittently. There was no radiation. The pain was aching, sharp, and throbbing; it was aggravated by bending, climbing, descending, walking, and standing. It is relieved by exercise and rest. Associated symptoms included decreased mobility, joint tenderness, limping, locking, popping, and swelling. A May 2016 VA orthopedic surgery note reflects that he had had injections in both knees at the last visit in January 2016, and had a full range of motion and good stability at that time. Both knees were again given an injection. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause functional loss, pain itself does not constitute functional loss. The Court in Mitchell explained that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Rather, the pain “must actually affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance’ [under] 38 C.F.R. § 4.40 in order to constitute functional loss” warranting a higher rating. See id. at 43. Although the Veteran has reported experiencing pain, the objective clinical findings reflect that he still has significant range of motion of his right knee. He only lacked five degrees of extension in February 2016 and had full range of motion in May 2016. As such, his existing rating sufficiently compensates him – again, even when considering his pain. The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Veteran’s rating was under DC 5260, so predicated on limitation of flexion; however, he did not have limitation of flexion or limitation of extension that warranted a compensable rating based on the actual ranges of motion. Thus, regardless of whether his right knee disability was rated under DC 5260 (for limitation of flexion) as opposed to DC 5261 (for limitation of extension), at most a 10 percent rating was warranted under DC 5003 because of the arthritis, even if not resulting in a compensable level of limitation of motion on either flexion or extension. Entitlement to a Rating in excess of 30 percent since August 1, 2017 In June 2016, the Veteran had surgery for right total knee replacement. Consequently, a temporary total (100 percent) rating was assigned from June 28, 2016 to August 1, 2017 under DC 5055, i.e., for the mandatory one year following that surgery when also considering his convalescent rating under 38 C.F.R. § 4.30. Effectively since August 1, 2017, the rating has been 30 percent. The Veteran would be entitled to a higher 60 percent rating if he had chronic residuals consisting of severe painful motion or weakness in the affected extremity. An August 29, 2016 DBQ shows the Veteran described flare ups as swelling, soreness, hard to stand and walk. On objective physical examination of this knee, he had range of motion from 0 to 100 degrees, so full extension and well more flexion than required for even a 0 percent rating. Pain was noted upon examination but did not result in additional functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. However, there was evidence of pain with weight bearing, although there was no additional loss of range of motion after repetitive use testing. He had reduced muscle strength, which was 3/5 active movement against gravity. However, he did not have muscle atrophy. There was no history of recurrent subluxation, no history of recurrent effusion, and no history of lateral instability. Upon testing, he had normal stability in all areas tested (anterior, posterior, lateral, medial). He did not have a meniscal condition. He was observed to use a brace and cane for mobility. The examiner opined that the Veteran had intermediate degrees of residual weakness, pain, or limitation of motion, and chronic residuals consisting of severe painful motion or weakness. Although the examiner chose two different levels of severity, in giving the Veteran the benefit of the doubt, he is entitled to a 60 percent rating (rather than lesser 30 percent rating) for chronic residuals consisting of severe painful motion or weakness. See 38 C.F.R. §§ 4.3, 4.7. A November 2017 VA clinical record reflects that the Veteran had range of motion of the right knee of 15 to 105 active degrees and 13 to 100 passive degrees. A December 2017 VA examination report indicates the Veteran explained that the pain is gone from the original degenerative joint disease (DJD), i.e., arthritis, but that it still hurts to get up from a chair or do any vigorous exercise, run, stand, or walk at a fast pace since his knee may swell and feet tight. Upon examination, he had range of motion from 0 to 90 degrees (extension to flexion) with pain noted on examination but not resulting in functional loss. He had muscle strength of 4/5. The examiner noted the Veteran has “some limitation with ROM [range of motion] at the knees. Strength is functional.” A January 30, 2018 VA examination report reflects that the Veteran reported that he is able to walk better since the right knee replacement but still has soreness of 8/10 after exercise. He stated that he goes to the gym 3-4 times a week to stay healthy and exercise helps relieve pain (of the knees and back), especially walking on the treadmill and doing free weights. He reported that he uses ice compresses daily for treatment with fair results. He had range of motion from 0 to 120 degrees with pain noted on flexion. There was no evidence of pain on weightbearing, and no objective evidence of localized tenderness or pain on palpation of the joints. He had full muscle strength of 5/5. There was no history of recurrent subluxation or instability, and stability testing during that examination revealed no instability. The examiner considered the Veteran’s complaints, as well as the symptoms upon examination, and concluded the residuals of the Veteran’s total knee joint replacement were “intermediate degrees of residual weakness, pain, or limitation of motion”, which correlates to a 30 percent rating. Thus, the Veteran is entitled to a higher 60 percent rating from August 1, 2017 (so from when his 100 percent rating ended) to January 30, 2018 (the date of the DBQ noting lesser severity). Beginning January 30, 2018, a lesser 30 percent rating consequently is warranted. A September 2019 Dr. Lincoln record for complaints of left knee pain reflects that the Veteran’s right knee had mild swelling, no effusion, was non-tender, there was no instability on testing, and had range of motion from 0 to 126 degrees. It was also noted that his right knee strength was normal. A March 2020 DBQ for the left knee also reflects that, for the right knee, the Veteran had range of motion from 0 to 125 degrees with no pain noted on examination. Thus, as of March 2020, the evidence still did not support a rating greater than 30 percent. A July 20, 2020 DBQ recounts the Veteran had had a total right knee replacement in 2016, with a knee manipulation 3 months later. He reported that his condition is getting worse, and that current symptoms are stiffness, swelling, throbbing pain, limited ROM/mobility, and lack of full extension and flexion. He claims that his condition interferes with prolonged walking, standing, using stairs, no running, limited kneeling, and squatting. It was noted that he is currently taking Diclofenac, Tylenol 2 500 mg, uses a knee brace and does joint strengthening exercises. He reported that flare-ups of his right knee occur daily, last for a few hours, and are “moderate”. He reported that the right knee flare-ups are precipitated by walking, standing, using stairs, squatting, kneeling, and alleviated by Diclofenac, Tylenol 2 500 mg, knee brace and joint strengthening. Upon examination, he had range of motion from 0 to 115 degrees, with pain noted on examination and causing the functional loss. He also had pain on weight bearing and objective evidence of localized tenderness or pain on palpation of the joint with moderate severity. There was no additional loss of function after repetitive use testing. The examiner determined the Veteran had chronic residuals consisting of severe painful motion or weakness. Thus, a higher 60 percent rating is warranted from July 20, 2020, the date of this DBQ noting that he meets the criteria for this greater rating. In sum, a 60 percent rating is warranted from August 29, 2016 to January 30, 2018, a 30 percent rating in the interim from January 30, 2018 to July 20, 2020, and a 60 percent rating again since July 20, 2020. The Board has considered the clinical records, the Veteran’s affidavit, and his reports to the VA examiners. Based upon the evidence in this case, the exact dates of his decrease in symptoms and increase in symptoms cannot be determined with any certainty. The earliest that it can be factually ascertained that he met the criteria for the ratings provided above are the dates of the examination reports.   Separate Rating for Instability of the Right Knee A separate rating may be assigned for instability (DC 5257) apart from the rating assigned, instead, based on arthritis with consequent limitation of motion on flexion and/or extension (DCs 5003, 5010, 5260 and 5261). See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). However, a separate rating is not allowable when the Veteran is rated under DC 5055, as that would constitute impermissible pyramiding because the rating criteria specifically contemplate weakness. Thus, the Board has considered whether a separate rating for instability is warranted prior to the assignment of a rating under DC 5055 for the right knee on June 28, 2016. A January 2016 record notes that stability of this knee was good; however, a February 15, 2016 private record (Jacksonville Orthopaedic Institute-University) notes the Veteran reported this knee giving way. He is competent to report what he feels or senses to be instability and giving out of his knee. In English v. Wilkie, 30 Vet. App. 347 (2018). the Court held that DC 5257 does not "speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that DC." The Court further held that "[t]he Board [cannot] categorically find objective medical evidence more probative than lay evidence with respect to [DC 5257] without supporting its conclusion with an adequate statement of reasons or bases." Id. The Board finds that a 10 percent rating is warranted from March 17, 2016 (the date of the Veteran’s claim) to June 28, 2016, owing to instability of his right knee. A higher rating is not warranted because the evidence does not support more than relatively “slight” instability. As already discussed, January 2016 and April 2016 records note good stability, and a May 2016 record notes no instability. Despite the holdings in English, the Board finds that the clinical examinations concerning this are more probative than the Veteran’s lay statements regarding the severity of his knee instability (as contemplated in DC 5257) because the clinicians are trained in evaluating the different cartilage and ligaments of the knee and in performing the various tests to assess whether the knee is unstable or subluxed (e.g., varus and valgus, Lachman's, etc.). Moreover, and importantly, no clinician has found more than slight instability on examination of the Veteran’s right knee. Thus, the evidence does not support finding that it is as likely as not that his right knee instability is moderate or severe rather than slight. 5. Entitlement to Increased Ratings for the Left Knee Disability In an August 2017 rating decision, the RO granted service connection for left knee arthritis evaluated as 10-percent disabling based on limitation of extension (DC 5261) from March 17, 2016. In an April 2020 rating decision, the RO granted a rating of 100 percent effective from December 4, 2019 to February 1, 2021, and a rating of 30 percent since February 1, 2021. The Veteran would be entitled to a higher rating if he had extension limited to 15 degrees or greater. March 17, 2016 to December 4, 2019 (10 percent) A February 2016 Jacksonville Orthopaedic Institute-University record reflects that the Veteran complained of bilateral knee pain, swelling, trouble with slopes, giving way, limping, and that he cannot walk more than approximately 100 feet. An August 2016 DBQ reflects that flare-ups of the left knee can be described as swelling and soreness, not as bad as the right knee. Upon examination, he had flexion range of motion from 10 to 140 degrees. Pain was noted on examination but did not cause additional functional loss. The examiner opined that after the Veteran’s disability caused disturbance of locomotion. He had normal muscle strength. There was no history of recurrent subluxation and no history of lateral instability. There was also no history of recurrent effusion. Upon joint stability testing, there was no instability. There was no history of recurrent patellar dislocation. November 2017 VA clinical records reflect that the Veteran reported that his left knee is “getting progressively worse with increased pain and weakness. Upon examination, he had range of motion of the right knee of 20-120 active degrees, and 17-125 passive degrees. The Veteran reported that he had fallen twice or three times in the past month related to weakness of the left knee.   A December 2017 DBQ reflects that the Veteran reported that his left knee “now feels weak” and has caused him to fall. He reported that he “still cannot walk comfortably [without] a limp, and that he wears braces on both knees. He also reported that he will be getting a steroid injection in his left knee. The pain was described as sharp, medially. Upon examination, he had range of motion from 0 to 100 degrees. Pain did not cause additional functional loss. Passive range of motion was unchanged form active range of motion, and there was no evidence of pain when the joint was used in non-weight bearing or on passive range of motion testing. The examiner could not provide an opinion as to additional loss of range of motion over repeated use or during a flare-up without speculation. The Veteran had full muscle strength, no atrophy, no history of recurrent subluxation, no history of left knee recurrent effusion, and no joint instability upon testing. A January 2018 DBQ reflects that the Veteran goes to the gym three to four times a week to stay healthy and exercise helps relieve pain, especially walking on the treadmill and doing free weights. Upon examination, the Veteran had range of motion from 0 to 130 degrees. No pain was noted on examination. He had full muscle strength and no atrophy. There was no history of recurrent subluxation, no history of recurrent effusion, and no instability upon examination/testing. July 2018 and February 2019 VA clinical records reflect that the Veteran reported that his left knee was symptomatic. Upon examination, he had range of motion from 0 to 120 degrees. There was no effusion, and no instability upon testing. An April 2019 VA clinical record shows the Veteran reported getting a knee injection a month earlier and that his pain is now a 3/10. A May 2019 VA clinical record indicates the Veteran reported that his left knee is “getting worse.” A September 2019 Southeast Orthopedic Specialists record reflects that the severity of the Veteran’s left knee pain was “moderate-severe”, occurs constantly, and is worsening. The pain was aching and dull; it was aggravated by bending, climbing stairs, movoemtn, sitting, walking, and standing. The Veteran complained that the knee pain had been present for two years, and he finds it difficult to walk greater than one block. He also felt that his knee was unstable and will give way with activity. Upon examination, he had no effusion, but tenderness. He also had a positive “apprehension test,” and positive mild valgus stress laxity test. His range of motion was from 9 to 125 degrees. A November 2019 Southeast Orthopedic Specialists record reflects that the Veteran’s left knee pain “began to increase significantly within the last year and has become functionally disabling in the activities of daily living. The pain is increased on the initiation of ambulation and increases even more the longer the patient bears weigh on the limb.” The Veteran also reported stiffness in the joint and pain with movement. This collective body of evidence does not support that a rating greater than 10 percent is warranted, including with consideration of the Veteran’s chronic pain, repetitive use, and flare-ups. Although one record (November 2017) notes range of motions of 20-120 degrees and 17-125 degrees, the other records, including one from the very next month, are against that degree of limitation of extension. He had range of motion from 10-140 degrees (August 2016), 0-100 degrees (December 2017), 0-130 degrees (January 2018), 0-120 degrees (July 2018), 0-120 degrees (February 2019), and 9-125 degrees (September 2019). Those ranges of motion do not support the notion that his disability more nearly approximates the criteria for a rating in excess of 10 percent – either when considering his limited extension or flexion. From December 4, 2019 to February 1, 2021, the Veteran had a 100 percent rating for his left knee disability owing to his knee replacement surgery. His disability since has been rated as 10-percent disabling. There is no probative evidence supporting assignment of a higher rating, meaning other than when he had that temporary 100 percent rating, except, as will be discussed, to additionally compensate him for the instability of this knee. Separate Rating for Instability of the Left Knee The Veteran has reported giving way and/or falling because his left knee is unstable; however, numerous records contrarily reflect a stable knee (August 2016, December 2017, January 2018, July 2018, and February 2019), and a September 2019 record notes only relatively mild symptoms. Thus, a 10 percent and no higher rating is warranted from March 17, 2016 to December 4, 2019 under DC 5257. As already discussed, the clinical records are more probative as to severity of the instability than the Veteran’s contrary lay statements since the examiners conducted various tests that are specifically designed to assess the severity of any instability of this knee or subluxation. 6. Entitlement to an initial compensable rating for a right knee scar AND 7. Entitlement to an initial compensable rating for a left knee scar The Veteran is in receipt of service connection for a right knee scar, evaluated as noncompensable from March 2016 under DC 7805. He also is in receipt of service connection for a left knee scar evaluated as noncompensable from December 2019, instead, under DC 7802. The Veteran would be entitled to a compensable (at least 10 percent) rating for a scar if it is unstable or painful under DC 7804, has a disabling effect according to DC 7805, or has an area of 144 sq inches or greater as contemplated by DC 7802. The August 2016 DBQ reflects that the Veteran had a right knee scar which was 21 cm x 2 cm on the right knee, and which was not painful or unstable. The Veteran stated that it was painful at times and sore and tight since surgery, but the examiner found no objective signs during the examination. (This was doing the rating period when the Veteran was in receipt of a 100 percent rating; a separate rating for the scar, even assuming arguendo that it was painful, is not permissible as it would violate the amputation rule. See 38 C.F.R. § 4.68). A December 2017 DBQ reflects no objective evidence of a painful or unstable scar. A January 2018 DBQ reflects no objective evidence of a painful or unstable scar. A July 2020 DBQ reflects that the Veteran had a 21 cm x 1 cm right knee scar, and a 15 cm x 1 cm left knee scar. He is competent to state what he considers to be painful and, yet, the December 2017, January 2018, and July 2020 DBQs are all unremarkable for complaints of pain and all find no objective evidence of pain. The evidence also does not support functional impairment caused by either scar. For these reasons and bases, compensable ratings are not warranted for these scars. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 8. Entitlement to a TDIU A claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of a claim for an increased rating for that disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On March 14, 2019, the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court in Ray held that “substantially gainful employment,” in the TDIU context, contains economic and noneconomic components; the economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. The Court also provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities The appeal period includes times when the Veteran was hospitalized or needed convalescence following surgery. On those occasions (i.e., from June 28, 2016 to August 1, 2017, and from December 4, 2019 to February 1, 2021), he was compensated with a temporary total rating pursuant to 38 C.F.R. § 4.29 and/or 4.30. Thus, it already has been acknowledged that he had instances when he was unable to work due to his service-connected disabilities, and he was compensated accordingly with the assignment of a temporary total rating during those time periods. Again, though, the assignment of a temporary total rating based on the need for convalescence following surgery is not synonymous with unemployability in the TDIU context. Therefore, the pertinent rating periods are from March 17, 2016 to June 28, 2016, from August 1, 2017 to December 4, 2019, and since February 1, 2021. However, the Veteran has been shown to have last been employed in February 2019, and he has argued that he has been unable to secure and follow substantially gainful employment ever since – meaning since February 2019. In support of this contention, he has submitted a May 2020 vocational opinion by P.T. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. So, above and beyond that, there must be indication of inability to work in any substantially gainful capacity for a claim of entitlement to a TDIU to prevail.  In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disability, alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16.  Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment also may be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. §§ 4.16(a), 4.18.  VA cannot be compelled to use the Social Security Administration’s (SSA’s) or any other agency’s definition of sedentary work or sedentary employment. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018), and Rouse v. McDonough, No. 19-5699 (U. S. Vet. App. April 13, 2021). Reference to the Veteran’s disabilities is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not, however, present findings concerning his disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. The Veteran has an associate’s degree in paralegal studies and computer skills to enter and retrieve information. He has a past work history in customer service for several years. Most recently, he was employed as a Support Technician from approximately January 2018 to February 2019. His service-connected disabilities are bilateral pes planus (flat feet), bilateral knee disabilities, status post knee replacements, and post-operative scars, which have had a combined rating of at least 70 percent since March 17, 2016. Thus, he has sufficient rating to be considered for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). A March 2020 VA examination report for the Veteran’s knee disabilities explains he has a 12-year history of providing “tech support”. The examiner found that the Veteran’s knee disabilities do not impact his ability to perform any type of occupational task. The examiner additionally determined the Veteran had intermediate degree of residual weakness, pain, or limitation of motion due to his left knee joint replacement in December 2019, just a few months earlier. A March 2020 affidavit by the Veteran reflects that he experiences flare-up of pain in his knees approximately once a day, which increases to a 10. These flare-ups were noted to occur when he would sit for too long without getting up to walk around and stretch. He also reported that sometimes his knees would lock up during a flare and he would be stuck in that position for 15 to 30 minutes. The private May 2020 vocational report reflects that the Veteran is able to sit approximately 20 minutes before his knees become so painful that he must change position. He also reported that his knees lock up and it is difficult for him to stand and walk after sitting for an extended period of time. He reported that he is able to stand for approximately one minute and walk a few minutes before his bilateral knee and foot pain cause him to have to be seated. The examiner reported that the Veteran wears a brace and special shoes to help with ambulation. She also reported that at night, he experiences pain, which impacts his ability to sleep and interferes with concentration and focusing on tasks. The Veteran reported to her that if a call lasts longer than 20 minutes, he has placed the caller on hold to move around and stretch, and that he has given them incorrect information in an effort to get them off the call. P.T. found that the Veteran’s service-connected disabilities at least as likely as not preclude him from securing and following substantially gainful employment to include unskilled sedentary employment from at least February 2012 to present. She reported that his daily flare-ups (as descried in his affidavit) last anywhere from 15 to 30 minutes and impact his concentration and focus, causing him to be unproductive at work. She found that he is unable to do required sitting, standing, and walking necessary to perform the full range of sedentary employment, and additionally is unable to sustain the adequate pace, predictivity and reliability required of all competent employment due to difficulty concentrating and focusing on tasks. A July 2020 DQ reflects that the Veteran reported knee flare-ups which are precipitated by walking, standing, using stairs, squats, and kneeling. They occur daily, and were described as moderate. The Veteran reported that his knee conditions interfere with “prolonged walking, standing, using stairs, no running, limited kneeling and squatting.” The examiner opined that during a flare-up his range of motion would be 0 to 90 degrees. The examiner also found that with regard to functional impact on the Veteran’s ability to perform any type of occupational tasks, the Veteran’s knee disabilities interfere with climbing, squatting, standing, or walking for longer than 10 minutes. Thus, even if his knee disabilities interfered somewhat with sitting, it was not a significant impact. A July 2020 DBQ for the feet reflects the Veteran’s statement that he gets flare-ups if he walks for more than five minutes, some physical activities, and prolonged standing He also reported that his pes planus interferes with climbing stairs and walking on pavement. The examiner found that the Veteran’s right knee scars do not interfere with the Veteran’s ability to work, his pes planus interferes with standing or walking for longer than one hour, but does not preclude sedentary employment. The examiner’s report also noted that there was no evidence of pain on non-weight bearing for either foot, but there was with testing of the knees. Despite that assessment of the private vocational counselor, the most probative evidence does not support the notion that the Veteran is precluded from substantially gainful employment because of his service-connected lower extremity disabilities. His disabilities have not been shown by the most persuasive evidence to adversely affect his trunk or upper extremity movements. He still can sit, grasp, type, and reach for things. He also does not have auditory or visual limitations due to his service-connected disabilities. His disabilities have not been shown to preclude use of the telephone or computer. Notably, his past work experience involves using the telephone and/or computer. Thus, he still retains the essential functioning that he needed in his past employment. Importantly, his job experience and education are essentially the very type of work/education that is adaptable to someone with lower extremity disabilities. The Board does not find a sufficient reason why he cannot continue in his former type of employment. Although he may need to stand and stretch after sitting for approximately 20 minutes, a job in customer service/tech support would allow for this. His education and prior work experience allow him to work in a job that has a sitting desk or an adjustable desk, a wireless computer, a Bluetooth, or a headset for taking telephone calls. He has complained of pain with prolonged standing or prolonged sitting, but the Board finds that he can certainly do a job consistent with his past history that allows for him to move around, change positions, stretch, put his feet on a cushion, etc., especially given available technology and since not constantly required, only instead after a prolonged period. Although the Veteran has reported that his pain interferes with his sleep, and the vocational counselor, P.T., opined that the Veteran’s pain affects his sleep and ability to concentrate/focus, the most probative evidence more reflects that his feet are not painful when not weight-bearing (i.e. while he is in bed), and his scars are not painful. With regard to his knees, he has consistently reported flare-ups of pain due to prolonged standing and walking. While his pain may affect his sleep to some degree, he has not reported significant sleep impairment (e.g. insomnia, awaking several times a night for extended periods of time, significant daytime fatigue, the need for daily naps, etc.,) when seen for numerous evaluations. He also has conceded that his non-service-connected back pain causes disruption of his sleep, and, with regard to his knee pain, he reported that it, too, interfered with his sleep, but that he was still able to work (see, e.g., December 2015, November 2017, January 2018 VA records) – importantly, without indication of less than satisfactory job performance. In sum, the most probative evidence is against finding that the Veteran’s service-connected disabilities, singly or in combination, preclude him from returning to the workforce in a substantially gainful capacity consistent with his level of education and employment experience. Thus, entitlement to a TDIU is denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.