Citation Nr: 21026160 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-38 958A DATE: April 30, 2021 ORDER 1. Entitlement to a rating in excess of 10 percent for post-operative residuals of the left knee prior to November 21, 2019 is denied. 2. Entitlement to a rating of 20 percent, but no higher, for post-operative residuals of the left knee based on dislocated semilunar cartilage under Diagnostic Code (DC) 5258, is granted beginning November 21, 2019 and the current 10 percent rating under DC 5262 is discontinued from November 21, 2019. 3. Entitlement to referral for extraschedular consideration for a total disability rating for compensation due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to November 21, 2019, the Veteran’s post-operative residuals of the left knee have not been manifested by limitation of flexion to 30 degrees or less; limitation of extension to 10 degrees or more; ankylosis; dislocated semilunar cartilage; recurrent subluxation or instability; or impairment of the tibia and/or fibula. 2. The Veteran underwent a meniscectomy on November 21, 2019, and since that time, post-operative residuals of the left knee have been manifested by dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 3. The preponderance of the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 10 percent for post-operative residuals of the left knee prior to November 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.40, 4.45, 4.59, 4.71, 4.71a, DCs 5003, 5256-5258, 5260-5262. 2. The criteria for entitlement to a 20 percent rating, but no higher, for post-operative residuals of the left knee from November 21, 2019 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5258. 3. The criteria for referral for an extraschedular TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to August 1985, and from May 1988 to September 1992. In March 2019, the Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. In August 2019, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim for additional development, to include providing the Veteran with a VA examination. The matters were remanded again in November 2020 for additional development and another VA examination. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s claim for a TDIU rating had been reasonably raised by the record in conjunction with the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, the Veteran’s representative has contended that the Veteran is totally disabled and was unable to secure or follow a substantially gainful occupation as the result, in part, of the service-connected knee disability on appeal. See March 2015 notice of disagreement (NOD). Thus, the claim of entitlement to a TDIU rating is before the Board. Increased Ratings Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific DCs identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. See 38 C.F.R. § 4.14. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With respect to the Veteran’s rating claim on appeal, the Board has considered the claim from the assigned effective dates, which the Veteran has not appealed, as well as whether any additional staged rating periods are warranted. The Veteran’s left knee disability has been rated under DC 5262, relating to impairment of the tibia and fibula. However, recent examination of the Veteran’s left knee has indicated no impairment of the tibia and fibula but has resulted in a diagnosis of degenerative arthritis, as well as a meniscal condition. Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a 0 percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). It should be noted that, during the course of this appeal, some of the relevant schedular ratings for evaluating impairments of the knee were amended. Specifically, the criteria pertaining to recurrent subluxation or lateral instability of the knee, as well as the criteria pertaining to impairment of the tibia and fibula, under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. See 85 Fed. Reg. 76, 453 (November 30, 2020). The Board finds as fact that recurrent subluxation or lateral instability has not been shown, which will be explained in detail below. Thus, these rating criteria are not implicated in the Veteran’s claim for increase. Additionally, there was no change to the criteria for evaluating limitation of motion or dislocated semilunar cartilage. Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enhancement of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. 38 U.S.C. § 5110; Kamas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran’s claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran’s knee disability under both the former and the amended rating criteria and must apply the former rating criteria if the result is more favorable to the Veteran. Id. Under the former criteria, in order to warrant a rating in excess of 10 percent for the left knee disability, the evidence must show: • Degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating episodes (20 percent under DC 5003); • Ankylosis of favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees (30 percent under DC 5256); • Dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint (20 percent under DC 5258); • Limitation of flexion of the leg to 30 degrees (20 percent under DC 5260); • Limitation of extension of the leg to 15 degrees (20 percent under DC 5261); or • Impairment of the tibia and fibula with moderate knee or ankle disability (20 percent under DC 5262). 38 C.F.R. § 4.71a. Under the relevant amended criteria, in order to warrant a rating in excess of 10 percent for the left knee disability, the evidence must show: • Impairment of the tibia and fibula with medial tibial stress syndrome (MTSS) or shit splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity (20 percent under DC 5262). 38 C.F.R. § 4.71a. In order to warrant a rating in excess of 20 percent from November 21, 2019 for a left knee disability under the former criteria, the evidence must show: • Knee, ankylosis of favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees (30 percent under DC 5256); • Limitation of flexion of the leg to 15 degrees (30 percent under DC 5260); or • Limitation of extension of the leg to 20 degrees (30 percent under DC 5261); or • Impairment of the tibia and fibula with marked knee or ankle disability (30 percent under DC 5262). 38 C.F.R. § 4.71a. In order to warrant a rating in excess of 20 percent from November 21, 2019 for a left knee disability under the relevant amended criteria, the evidence must show: • Impairment of the tibia and fibula with MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, in both lower extremity (30 percent under DC 5262). 38 C.F.R. § 4.71a. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for the left knee disability prior to November 21, 2019, but supports an award of increased rating of 20 percent, but no higher, as of November 21, 2019. The reasons follow. Prior to November 21, 2019 The Veteran has a remote history of arthroscopic surgeries in the early 1990s relating to a left knee injury suffered during service. The Veteran’s claim for an increased rating was received in May 2011. He underwent a VA examination in February 2014 and reported the regular use of a cane. He stated that his condition had worsened with limited range of motion, stiffness, and swelling. He reported experiencing flare-ups with swelling in the knee causing limited range of motion and difficulty walking. The examiner indicated movement to be the contributing factor to the Veteran’s flare-ups. The Veteran recorded full range of motion on flexion and extension in the bilateral knees. However, the Veteran was noted to have some functional loss caused by pain on movement in the left knee and was found to experience pain beginning at 130 degrees on flexion. He recorded full strength in both knees on flexion and extension and normal joint stability with testing. The Veteran was noted not to have degenerative or traumatic arthritis, joint instability, recurrent patellar subluxation or dislocation, any tibial and/or fibular impairment, or meniscal conditions. Imaging of the Veteran’s knee showed no significant bony abnormality, mild atherosclerosis, and two tiny surgical clips within the medial lower leg. The examiner stated that the functional impact of the Veteran’s left knee disability on his ability to work was mild impairment of moving about. As to the Veteran’s flare-ups, the examiner stated that there are no contributing factors of weakness, fatigability, incoordination or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the knee joint. There was no change to the Veteran’s diagnosis of post-operative residuals of the left knee. Thereafter, treatment records reflect generally stable functioning with continued reports of chronic pain but without significant exacerbations requiring inpatient or emergency treatment. He was noted to have a stable gait on multiple occasions and reported walking for exercise and coaching youth sports. The Veteran reported that his left knee pops when he walks. In September 2018, the Veteran stated that his left knee was swollen and painful at times, but indicated that it “[d]oesn’t really limit his activity” and he was not interested in physical therapy. In 2019, the Veteran was diagnosed with degenerative arthritis, transient synovitis, and a meniscal tear in the left knee. He reported instability, continued swelling, and two falls in the past year. Although the record does not show significant sustained exacerbations in the Veteran’s condition during this time, he was scheduled to undergo an arthroscopic procedure in November 2019. The preponderance of the evidence during this period is against the award of an increased rating. Specifically, examination findings have not indicated malunion of the tibia and fibula in order to support an increased rating under DC 5262. As DC 5262 is not applicable, the Board considers application of different DCs relating to the Veteran’s left knee. An increased rating under 5003 is not warranted because there was not x-ray evidence of degenerative arthritis of multiple major joints or minor joint groups with occasional incapacitating episodes. The Veteran did not have ankylosis of the knee joint to warrant an increased rating under DC 5256. The Veteran was not been found to have recurrent subluxation or lateral instability to warrant an increased rating under DC 5257, addressed in more detail below. Additionally, no examination found the Veteran to have dislocated semilunar cartilage as required for an increased rating under DC 5258. The Veteran’s range of motion on both flexion and extension were measured in excess of the limitations required to warrant an increased rating under DCs 5260 and 5261, to include limitation of motion at the 10 percent rating for both motions. The Board has considered the Veteran’s reports of painful motion in his knee, as well as the loss of function reported by the Veteran during this part of the appeal period. When examined in February 2014, he had full 5/5 muscle strength with both flexion and extension and no atrophy, which is evidence against moderate weakness or limitation of function. In June 2017, his private physician described his gait as normal. In September 2018, while the Veteran reported his left knee gave him a lot of problems, the examiner documented that it did not “really limit his activity.” In July 2019 and August 2019, the private physician described the Veteran’s musculoskeletal examination as being normal. These facts are evidence against an evaluation in excess of 10 percent. Mitchell, 25 Vet. App. 32 (2011). From November 21, 2019 The Veteran underwent a left knee arthroscopy on November 21, 2019. Thereafter, the Veteran underwent a VA examination in December 2019. The Veteran reported that he had just completed physical therapy. He described his current symptoms as sharp pain and that the impact of his condition is limited range of motion and limited activities. The Veteran reported daily flare-ups, described as moderate to severe and lasting for one to two days. He said that the flare-ups were precipitated by walking and alleviated by rest. He also reported constant cane use and frequent episodes of joint “locking.” The Veteran reported functional loss due to limited range of motion. He recorded limited range of motion with 0 to 90 degrees on flexion and 90 to 0 degrees on extension in the left knee. The examiner noted crepitus and pain in the left knee, including on passive motion, as well as with weightbearing and non-weightbearing, on examination. The examiner stated that the Veteran’s pain and limited range of motion did not contribute to functional loss. Swelling in the left knee was noted on examination; however, the Veteran recorded full strength on both flexion and extension. The Veteran had no ankylosis, no subluxation and lateral instability, no joint instability on testing, and no tibial or fibular impairment. The examiner reported that the Veteran’s recent meniscal repair procedure and joint effusion was shown on medical imaging, but evidence of arthritis was not shown. The examiner noted the Veteran to have a meniscal condition, relating to his recent surgery, with frequent episodes of joint “locking” and joint effusion. Although the examiner did not check the box indicating frequent episodes of joint pain, in the description section, she wrote that the Veteran noted frequent joint pain. The Veteran’s report of joint pain is generally consistent with his reported symptomology during the relevant period. As discussed further herein, this finding establishes a basis for an increased rating under DC 5258. The Veteran was noted to be able to perform repetitive-use testing with at least three repetitions and no additional loss of functioning. Although the examination was not performed immediately after repetitive use over time, the examination was noted to be medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Similarly, while the examiner noted that the examination did not occur during a flare-up, the examination was medically consistent with the Veteran’s statements describing functional loss during flare up. The examiner stated that pain and lack of endurance contributed to functional loss but documented that it could not be described in terms of range of motion loss. The examiner explained that, after review of all data, including the Veteran's history, exam findings, and medical treatment records, it is not possible without mere speculation to determine loss of range of motion. She stated that, given the subjectivity of pain and the difference based on activity and the length of time the activity is performed, as well as the lack of supporting objective documentation in the file, it is not possible to determine, without resorting to mere speculation, an estimated loss of range of motion. Additionally, the examiner noted that there is no persistent evidence of record, considered to be valid or reproducible for ratings purposes, that indicates the Veteran to have a loss of function during these conditions. The Veteran’s diagnosis was changed to include meniscal tear and transient synovitis. The examiner stated that the functional impact of the Veteran’s left knee on his ability to perform occupational tasks was an inability to squat, climb, or kneel; difficulty rising from a seated position; and decreased ability to sit, stand or walk for an extended period of time. The Veteran initially reported some improvement following his November 2019 surgery; however, he experienced a continuation of symptoms with chronic pain aggravated by movement and relieved by rest. The Veteran presented for private treatment without the use of an assistive device in February 2020. On examination in June 2020, the Veteran’s knee exhibited a popping sound on extension, but no instability was present on varus and valgus stress testing. The Veteran’s range of motion was described as “near full” but with pain and limitation. The following month he reported symptoms of instability with limping, stiffness, tenderness, popping, and weakness. In October 2020 the Veteran underwent another arthroscopic procedure on his left knee with subchondroplasty. On follow-up two weeks later, he reported that his left knee felt improved despite continued pain and swelling. He was again noted to present without the use of an assistive device to aid in ambulation. In January 2021, the Veteran reported that the knee was “still bothering him some,” but that he was getting around much better than prior to his surgery. The Veteran underwent another VA examination the following month in February 2021. He reported that since his October 2020 subchondroplasty, he had constant swelling in the knee with worsening pain, stiffness, and “snaps and pops,” as well as reporting that his knee would give out. He again reported regular cane use. The Veteran was diagnosed with post-operative residuals with degenerative arthritis. The examiner noted tenderness with palpation over the medial and anterior aspects. The Veteran recorded range of motion of 0 to 70 degrees on flexion in the left knee and 70 to 0 degrees on extension. This was noted to prevent the Veteran from bending down using the left knee. Pain was noted on examination, including with non-weightbearing, causing functional loss with repeated use over time. The examiner stated that the Veteran’s left knee pain caused functional loss that could be described in terms of range of motion with flexion limited to 0 to 65 degrees and extension at 65 to 0 degrees. The examiner stated that flare-ups did not cause additional functional loss. Although examination was not performed immediately following repetitive use or during flare-up, the examination was neither medically consistent or inconsistent with the Veteran’s statements of functional loss with repetitive use over time or during flare-up. The Veteran recorded full strength (5/5) in the left knee on extension and 4/5 strength on flexion with no muscle atrophy. The examiner documented the Veteran did not exhibit ankylosis, subluxation or lateral instability, or any tibial or fibular impairments. The examiner also indicated the Veteran not to have any meniscus condition but inaccurately stated the Veteran’s surgical history by indicating the Veteran to have had a total left knee joint replacement with surgery dates in November 2019 and October 2020. The record reflects that the Veteran underwent an arthroscopy in November 2019 (see December 11, 2019 private treatment record (documenting the Veteran was two weeks “post left knee arthroscopy”)) and a subchondroplasty in October 2020 (see November 12, 2020 private treatment record (documenting the Veteran was two weeks “post a left knee arthroscopy with subchondroplasty”)), but he has not had a total left knee joint replacement. Although the examiner inaccurately documented the Veteran’s surgical history, the probative value of the other clinical findings in the examination report is not reduced. Relating to the Veteran’s surgical history, the examiner stated the Veteran to have chronic residuals consisting of severe painful motion or weakness. The examiner stated that joint stability was indicated, but that the Veteran was unable to obtain knee flexion and other position necessary to adequately perform tests for evaluating stability. The examiner stated that the functional impact of the Veteran’s condition on his ability to perform occupational tasks included the inability to bend down on the left knee; difficulty with transition from sitting to standing and from lying to sitting; the inability to run; and difficulty with prolonged periods of standing and walking. After a review of all the evidence of record, the Board finds that, since November 21, 2019, the Veteran’s service connected left knee disability is most closely approximated by dislocation of semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint. As such, the Board finds that a 20 percent rating under DC 5258 for dislocated semilunar cartilage is warranted. The change in DC to 5258 is more appropriate because it recognizes the nature of the left knee disability (anatomical location and functional impairment), rates on the symptoms the Veteran has experienced (swelling, joint effusion, “locking,” and frequent episodes of pain and limitation of flexion and extension to a noncompensable degree), and is both potentially and actually more favorable to the Veteran in this case. As noted above, prior to this decision, the Veteran was in receipt of a 10 percent rating under DC 5262. The assignment of a particular DC is “completely dependent on the facts of a particular case” and the Board can choose the DC to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (holding the choice of DC should be upheld so long as it is supported by explanation and evidence). One DC may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch DCs to reflect more accurately a claimant’s current symptoms. See also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the DC associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Because the Board is granting a 20 percent rating under DC 5258, the 10 percent rating under DC 5262 will be discontinued as assigning separate ratings under both DCs 5262 and 5258 would constitute pyramiding; both DCs 5262 and 5258 overlap in symptoms or findings of pain and limitation of motion (of which “locking” is a form), including limitation of motion due to pain, thus, assigning separate ratings under both would violate the prohibition against pyramiding because it would compensate the Veteran twice for the same symptomatology, here, painful limitation of motion. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The knee impairment under DC 5262 is overly broad and would contemplate all symptoms involving the knee, including painful motion. Moreover, this change in DC does not amount to a reduction, as the Veteran’s left knee disability rating increases from 10 percent to 20 percent as a result of this decision. Furthermore, in this instance, none of the Veteran’s VA examinations during the relevant period have indicated tibial or fibular impairment, to include malunion, as contemplated by DC 5262, despite his symptomology noted above. The Board finds the evidence supports a finding that a 20 percent rating is warranted under DC 5258, as treatment records document the Veteran’s heightened symptoms following his arthroscopy for a meniscal condition on November 21, 2019. As for the current rating under DC 5258, the Board also considering whether a separate compensable rating or ratings under DCs 5260 and 5261 is warranted. The Board notes that DCs 5258, 5260, and 5261 are all rated based on limitation of motion and knee pain as a cause of limitation of motion. In the case of DC 5258, limitation of motion is reflected by the symptoms or findings of pain, locking, and effusion into the joint. See also FIRESTEIN, KELLEY’S TEXTBOOK OF RHEUMATOLOGY, 571 (9th ed. 2012) (“locking” is the sudden loss of ability to extend the knee and is usually painful and may be associated with an audible noise, such as a click or pop). In the case of DCs 5260 and 5261, such limitation of motion is encompassed by the limitation of flexion, including limitation of motion due to pain. Both DCs overlap in “locking” as a form of limitation of motion that is usually accompanied by pain; therefore, the DCs both rate on knee pain and limitation of motion due to pain. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that examination findings do not show severity of limitation of motion sufficient to warrant a compensable rating under DCs 5260 or 5261, which would also preclude an increased rating under DC 5260 and 5261. Were the Board to grant separate ratings under both DC 5258 and DCs 5260 and/or 5261, the Veteran would receive compensation under different codes for the same manifestations of pain and limitation of motion, which would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The 20 percent rating is the only one under DC 5258 and, thus, no higher rating can be awarded under this DC. Consideration of other potentially applicable ratings would also not result in the award of an increased or additional rating. Specifically, an increased rating or additional separate rating under 5003 is not warranted because there is not x-ray evidence of degenerative arthritis of multiple major joints or minor joint groups. Also, the Veteran does not have ankylosis to warrant an increased rating under DC 5256. The Board has considered the Veteran’s reports of painful motion in his knee, as well as the loss of function reported by the Veteran during this part of the appeal period. When examined in December 2019, he had full 5/5 muscle strength with both flexion and extension and no atrophy. In November 2020, he denied needing an assistive device and reported improved symptoms. A January 2021 private treatment record showed a normal musculoskeletal examination. At the time of the February 2021 examination, he had 5/5 muscle strength with extension and 4/5 muscle strength with flexion and no atrophy. This is evidence against severe weakness or limitation of function and is evidence against an evaluation in excess of 20 percent during this part of the appeal period. Mitchell, 25 Vet. App. 32 (2011). As to instability of the left knee, the Board acknowledges that the Veteran as a layperson is competent to testify to factual matters of which he has first-hand knowledge such as experiencing pain, perceiving instability in a joint, or witnessing actually observed symptoms such as swelling. See Washington v. Nicholson, 19 Vet. App. 362, 368 (discussing competence to report experienced or witnessed symptoms versus incompetence to render a medical diagnosis or identify the etiology of disease or injury that require medical knowledge). With respect to lateral instability, the Board has considered the Veteran’s statements describing left knee instability and his left knee “giv[ing] out.” The Board recognizes that when considering whether lay evidence is competent the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Board finds the Veteran is competent to describe many symptoms of his left knee disability, such as perceived instability and pain. See Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Board also finds his statements regarding perceived left knee instability generally credible because he made them to medical providers while seeking treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth to receive proper care). Here, the Veteran reported experiencing instability prior to his November 2019 arthroscopic procedure and again on follow-up in July 2020. To the extent, however, that medical personnel used specific clinical tests to assess the stability of the Veteran’s left knee, the Board finds the objective medical evidence is more probative than the lay evidence on the issue of instability because the clinical assessment of knee instability made by performing particular joint stability tests falls outside the realm of common knowledge of laypersons. Here, competent medical evidence has documented that the Veteran’s left knee joint was stable to anterior testing (Lachman test), posterior testing (posterior drawer test), medial testing (valgus stress testing), and to lateral testing (varus stress testing). In Jandreau, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when…lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau, 492 F.3d at 1977. The issue of whether the Veteran’s perceived symptom of left knee instability is competent and sufficient to establish that he has actual instability of the knee sufficient to warrant a separate disability rating under DC 5257 is analogous to the situation described in Jandreau. In this case, the Veteran has described his perception of left knee instability. However, two VA medical professionals in February 2014 and December 2019 have tested his left knee for instability during the pendency of his appeal and neither found instability on anterior, posterior, medial, or lateral stability testing. Additionally, the Veteran’s private physician examined his left knee in February 2020 and documented no laxity on varus and valgus testing with negative medial and lateral McMurray’s testing and again in June 2020 and documented no instability to varus and valgus stress with anterior drawer and posterior drawer testing being negative. Because the Veteran’s perceived symptom of left knee instability has not been demonstrated or confirmed on clinical testing by medical professionals, which testing was performed in February 2014, December 2019, February 2020, and June 2020, his lay testimony is insufficient to establish the presence of anterior, posterior, medial, or lateral instability sufficient to warrant separate disability rating. Furthermore, although instability testing was unable to be performed during the Veteran’s February 2021 examination due to the Veteran’s inability to achieve certain positions, the examiner indicated that there was no subluxation or lateral instability and that joint stability was indicated. Separate findings and the Veteran’s own reporting following his most recent knee procedure in October 2020 also indicate that the Veteran’s condition had not worsened since his previous VA examination so as to demonstrate that the Veteran’s left knee had remained stable. Notably, the Veteran presented for treatment without the use of an assistive device just two weeks after his October 2020 procedure. Additionally, in January 2021, the Veteran reported that, although the knee was still bothering him, he was getting around much better than prior to his surgery. These findings are not indicative of the development of instability. In English v. Wilkie, 30 Vet. App. 347 (2018), the U.S. Court of Appeals for Veterans Claims (Court) held that the Board cannot find objective medical evidence categorically more probative than lay evidence without explaining why that is the case. To be clear, the Board finds the objective medical evidence more probative than the Veteran’s reports of perceived left knee instability for two reasons. First, the VA examinations in 2014 and 2019 included four forms of stability testing, anterior instability, posterior instability, medial instability, and lateral instability and none of the testing demonstrated left knee instability. Testing during routine follow-up in February 2020 and June 2020 also indicated stability on varus and valgus stress testing. The thorough, repeated stability testing, which did not reveal instability, supports the conclusion that the Veteran’s perceived knee instability is not due to anterior, posterior, medial, or lateral knee joint laxity. Second, the 2014 and 2019 VA examinations were performed by two different medical professionals with each performing joint stability testing, and each documented the left knee was stable to stability testing. A third examiner was responsible for the findings of stability on valgus and varus testing during treatment in February and June 2020 and findings from a fourth examiner stated that joint stability was indicated on examination in February 2021, even without testing. This is consistent with the Veteran’s statements of increased mobility following his October 2020 procedure and his ability to present for treatment without the use of an assistive device. The internal consistency among the independent examiners bolsters the conclusion that their findings of no left knee joint instability were accurate. For these reasons, the Board finds that the preponderance of the evidence is against entitlement to a separate rating for instability of the left knee. Thus, the provisions of Diagnostic Code 5257, either the former or the amended criteria, are not for application. In sum, the evidence supports the award of an increased rating of 20 percent under DC 5258 for post-operative residuals as of November 21, 2019. The preponderance of the evidence weighs against the Veteran’s claim of entitlement to an increased disability rating in excess of 10 percent prior to November 21, 2019, and in excess of 20 percent thereafter. As the preponderance of evidence is against the claim for ratings higher than 10 and 20 percent, there is no reasonable doubt to be resolved, and the claim for higher ratings is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran’s service-connected disabilities do not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a). The Veteran is service connected for lumbosacral strain (40 percent disability rating from April 10, 2000); post-operative residuals of the left knee (10 percent disability rating from September 29, 1992 to November 21, 2019, and 20 percent from November 21, 2019); and radiculopathy of the left lower extremity associated with lumbosacral strain (10 percent disability rating from December 23, 2019). The Veteran also has noncompensable disability ratings for residual scars associated with post-operative residuals of the left knee (0 percent disability rating from September 30, 2010); and residual scar of the lumbar spine associated with lumbosacral strain (0 percent disability from September 30, 2010). Thus, the Veteran has had a combined disability rating of 50 percent from April 10, 2000 and a 60 percent rating from November 21, 2019. It is noted that the Veteran has multiple nonservice-connected disabilities, including coronary artery disease and hypertension, which cannot be considered for purposes of TDIU. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). For purposes of TDIU consideration, the above analysis of the Veteran’s increased rating claim for post-operative residuals of the left knee is incorporated herein. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that referral for extraschedular consideration of a TDIU rating is warranted. The reasons follow. Apart from the Veteran’s left knee disability, the Veteran’s limitations relate to his lumbar strain and associated radiculopathy in the left leg. He has a remote history of multiple spinal fusion procedures in the 1990s. The Veteran’s surgical scars are not shown to cause the Veteran functional impairment. He has reported chronic back pain and aching in his left leg. In December 2012, the Veteran reported that his back pain is constant but manageable with medication. The Veteran underwent a VA examination for his back condition in February 2012. The examiner indicated the Veteran’s condition to result in functional impact on his ability to work described as a moderate impairment of standing and moving about, a severe impairment of lifting and bending, and a mild impairment of sitting. However, the Veteran’s condition has generally been treated conservatively during the relevant period and he has not required urgent or inpatient treatment for significant exacerbations. Treatment notes in August 2016 stated that the Veteran is limited by his back, but he reported doing well. He indicated that he was a coach of youth sports and that he is physically active and walks two to three miles per day. In December 2016, the Veteran reported that he was not using any medication for his back pain except to take ibuprofen as needed. Although he reported difficulty with walking, his gait was described as stable. A February 2017 x-ray of the Veteran’s lumbar spine showed stable status post posterior spinal fixation without evidence of complication and no acute fracture. Stable minimal retrolisthesis of L3-L4 was noted. Treatment notes continued to indicate that the Veteran got exercise through coaching youth sports and walking. He was assessed with a normal gait in July 2017 and reported stable pain symptoms. He also reported doing home exercises. On VA examination in December 2019, radiographic imaging showed post-operative changes, spondylolisthesis, suggested bilateral L5 spondylolysis, and scattered degenerative spurs. The Veteran’s radiculopathy of the left lower extremity was described as mild, and the examiner documented the Veteran’s back condition resulted in decreased functional abilities described as a decreased ability to lift over 10 pounds, decreased ability to function in in full range of motion, and the need for frequent position changes. As noted above, the Veteran reported regular cane use during multiple examinations but use of a cane is not noted in the majority of treatment records. In September 2018, during follow-up for his left knee disability, the Veteran reported pain and swelling in the knee but stated that it doesn’t really limit his activity and he was assessed with a normal gait. He was again assessed with a normal gait in March 2019. Following his November 2019 arthroscopic procedure, the Veteran reported improvement in the left knee with minimal pain. He was noted to ambulate with a slight limp. In February 2020, the Veteran again presented without the use of a cane. Notes reflect that the possibility of using a cane in the Veteran’s opposite hand was discussed with his treating provider as a means of managing his symptoms, which suggests that the Veteran was not using a cane previously. In November 2020, approximately two weeks after his most recent knee procedure, he specifically denied needing an assistive device to aid with ambulation. These findings serve to undermine the Veteran’s overall credibility as it relates to his reporting of symptoms and functional impairments. Although the Veteran has alleged flare-ups of his knee to be incapacitating three to four times per week, causing him to not want to get out of bed, no such incapacitating episodes are evidenced in the longitudinal record during the relevant period. This claim is also inconsistent with the Veteran’s 2018 statement that knee symptoms do not really impact his activities, or his recorded abilities to coach youth sports and regularly walk for exercise. As noted, apart from the Veteran’s surgical procedures in 2019 and 2020, the Veteran has required only routine treatment without significant exacerbations requiring urgent or inpatient care. Records reflect independence in activities of daily living and the ability to ambulate independently. This evidence does not support a finding that the Veteran is unable to obtain and follow substantially gainful employment. Regarding the Veteran’s education, training, skills, and work history, the Veteran submitted VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) in January 2021. He reported that he last worked full time in 2007 as an Asphalt Designer. He stated that he had a high school education but indicated no additional school or special training. Treatment notes from 2010 indicate that the Veteran became unable to work his prior job due to his back and knee disabilities. Despite the gap in employment since the Veteran last worked full time, the Veteran’s work history and education record demonstrate a capacity for learning and training that do not appear to be hindered by his service-connected disabilities. These attributes would facilitate the Veteran’s transition to a separate line of work that the Veteran is physically capable of performing. As to the Veteran’s physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences chronic pain in his back and left lower extremity and has difficulty performing prolonged sitting, standing, walking, and cannot perform postural maneuvers such as kneeling, crawling, or repetitive bending. However, treatment records predominantly reflect the Veteran’s ability to ambulate independently without the use of an assistive device. He has demonstrated independence in his activities of daily living and has reported the ability to walk multiple miles per day, perform home exercises, and coach youth sports. The totality of the evidence shows that the Veteran is capable of performing work at least at the sedentary exertional level with the ability to occasionally change positions to avoid prolonged sitting. The Department of Labor’s Dictionary of Occupational Titles (DOT) defines sedentary work as exerting up to 10 pounds of force occasionally (i.e. up to one third of the time), and/or a negligible amount of force frequently (i.e. from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to the DOT’s definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The Board finds no prejudice to the Veteran in considering the definition for purposes of deciding this claim. The Veteran’s treatment records and the limitations ascribed by VA examiners indicate that the Veteran is capable of sedentary work with the ability to periodically switch positions for comfort. Accordingly, the weight of the evidence shows that the Veteran is physically capable of performing substantially gainful employment. As to the Veteran’s mental ability to perform substantially gainful employment, the Veteran has no service-connected psychiatric disorder. The Veteran’s service-connected disabilities have not been shown to cause the Veteran communicative deficits. Findings on mental status examination generally indicate the Veteran to be fully alert and oriented with intact cognitive functioning, displaying appropriate mood/affect, and cooperative. Even when considering nonservice-connected disabilities, examination findings generally indicate intact cognitive functioning and independence in activities of daily living. Treatment notes indicate the Veteran to have no barriers to learning. As the Veteran’s service-connected disabilities do not cause the Veteran mental limitations, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran’s physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment. For example, it does not appear that the Veteran’s service-connected disabilities preclude him from jobs that involve data entry. With data entry, the Veteran is primarily responsible for entering data into a system. These jobs can usually be done from home without significant training or experience. These occupations require very little exertional effort and would allow the Veteran to change positions as needed. Additionally, there are jobs that can be performed at home, such as a telemarketer, where the employee makes calls and reads a script, which does not require extensive training or experience, would require minimal exertional activity, and would allow the Veteran to change positions as needed. Similarly, the Veteran appears capable of performing certain cashier or assembly line positions, or work as a library, theater, or museum attendant, positions that would not exceed the demands of sedentary work and would allow the Veteran to change positions intermittently. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment due to his service-connected disabilities during the relevant period. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that the Veteran is precluded from all forms of substantially gainful employment and, therefore, is not entitled to referral for extraschedular consideration of a TDIU rating. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to referral for consideration of an extraschedular TDIU rating is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, Associate 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.