Citation Nr: 21026891 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 11-26 456A DATE: May 4, 2021 ORDER A disability rating of 30 percent, but no higher, for the service-connected residuals of post-op right knee meniscus tear ("right knee disability") for the period on appeal prior to November 29, 2017 is granted. An initial disability rating of 20 percent, but no higher, for the service-connected right knee recurrent subluxation or lateral instability is granted. A total disability rating based on unemployability (TDIU) due to service-connected disabilities for the period on appeal from January 31, 2012 is granted. An effective date of January 31, 2012, but no earlier for the award of Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. For the period on appeal prior to November 29, 2017, the Veteran's right knee disability was manifested by limitation of extension to 20 degrees, but not more, including consideration of additional functional loss after repeated use and during flare-ups. 2. For the entire period on appeal, the Veteran's right knee recurrent subluxation or lateral instability was manifested by moderate lateral instability of the right knee. 3. The Veteran completed two years of college and has not worked since August 15, 2015; he had experience as a window clerk, mental health technician, warehouse packer, home caretaker, warehouse assembler, medical delivery driver, warehouse line coordinator, and restaurant food runner. 4. As of January 31, 2012, the date that VA received the Veteran's claim for increased rating for his right knee disability, the Veteran's service-connected disabilities included left inguinal hernia, ratable as 60 percent disabling, right knee disability, ratable as 30 percent disabling, degenerative arthritis of the lumbar spine, ratable as 20 percent disabling, right knee recurrent subluxation or lateral instability, ratable as 20 percent disabling, right knee semilunar cartilage dislocation, ratable as 20 percent disabling, traumatic arthritis of the proximal interphalangeal joint of the right index finger, ratable as 10 percent disabling, left lower extremity radiculopathy of the sciatic nerve, ratable as 10 percent disabling, and scar residuals of hernia surgery, ratable as noncompensable. 5. For the full period on appeal, or from January 31, 2012, the Veteran's service-connected disabilities, at least as likely as not, precluded him from maintaining substantially gainful employment consistent with his education and work history. 6. As of January 31, 2012, the Veteran was permanently and totally disabled due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability rating, but no higher, for the service-connected right knee disability for the period on appeal prior to November 29, 2017 have been met. 38 U.S.C. §1155 ;38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5261. 2. The criteria for an initial disability rating of 20 percent, but no higher, for the service-connected right knee recurrent subluxation and lateral instability have been met. 38 U.S.C. §1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 3. From January 31, 2012, the criteria for entitlement to a TDIU have been more nearly approximated. U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 4. The criteria for an effective date of January 31, 2012, but no earlier, for the award of eligibility for DEA benefits under 38 U.S.C. Chapter 35 are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.807(a), 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to June 1982. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a disability rating in excess of 10 percent for the service-connected right knee disability. In July 2013, VA received the Veteran's Notice of Disagreement (NOD). In August 2014, the RO issued a Statement of the Case (SOC). In September 2014, VA received the Veteran's VA Form 9 appeal to the Board. In October 2015, the Board remanded the case for further development and adjudicative action. In June 2017, the Board again remanded the case for further development and adjudicative action. In that decision, the Board inferred a claim for a TDIU reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In an October 2018 rating decision, the RO increased the disability rating for the service-connected right knee disability from 10 to 30 percent, effective from November 29, 2017, granted a TDIU, effective from September 20, 2013, and found that eligibility to DEA had been established from September 20, 2013. In a July 2019 decision, the Board denied the Veteran's claim for a disability rating in excess of 10 percent for the service-connected right knee disability. Furthermore, the Board granted separate disability ratings of 10 percent, but no higher, for right knee recurrent subluxation or lateral instability and 30 percent for dislocated semilunar cartilage. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In the interim, in a July 2019 rating decision, the RO implemented the separate ratings of 10 and 20 percent, respectively, for right knee subluxation or lateral instability and right knee dislocated semilunar cartilage, both effective from September 1, 2011. In a July 2020 Court Order granting a Joint Motion for Partial Remand (JMPR) the Court vacated the Board's July 2019 decision in part and remanded the case for further development in compliance with the directives specified in the JMPR. The JMPR was limited to the following issues: (1) entitlement to a disability rating in excess of 10 percent for the service-connected right knee disability for the period prior to November 29, 2017; (2) entitlement to an initial disability rating in excess of 10 percent for recurrent subluxation or lateral instability of the right knee; and (3) entitlement to a TDIU prior to the current effective date of September 20, 2013. The Veteran expressly waived his appeal for all other issues addressed by the July 2019 Board decision. These issues included entitlement to a disability rating in excess of 30 percent for the service-connected right knee disability from November 29, 2017 and entitlement to an initial disability rating in excess of 20 percent for right knee semilunar cartilage dislocation with frequent episodes of locking, pain, and effusion into the joint. See July 2020 JMPR. Accordingly, these issues will not be addressed by the present decision. Increased Rating 1. Entitlement to a disability rating in excess of 10 percent for the service-connected right knee disability for the period on appeal prior to November 29, 2017. 2. Entitlement to an initial disability rating in excess of 10 percent for the service-connected right knee recurrent subluxation or lateral instability. The Veteran seeks a disability rating in excess of 10 percent for his service-connected right knee disability prior to November 29, 2017 and an initial disability rating in excess of 10 percent for his service-connected recurrent subluxation or lateral instability. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in §§ 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran's service-connected right knee disability is currently evaluated as 10 percent disabling prior to November 29, 2017, under 38 C.F.R. § 4.71a, Diagnostic Code 5261. Furthermore, his recurrent luxation or lateral instability of the right knee is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5260 rates limitation of leg flexion and Diagnostic Code 5261 rates limitation of leg extension. Under Diagnostic Code 5260, (limitation of flexion), a 10 percent disability rating is warranted for flexion limited to 45 degrees. Limitation of flexion to 30 degrees warrants a 20 percent disability rating. A 30 percent disability rating is assigned for flexion limited to 15 degrees or less. In order for the Veteran to receive a 10 percent rating under Diagnostic Code 5261 (limitation of leg extension), the evidence must show that his knee disability is manifested by leg extension limited to 10 degrees. A 20 percent rating under Diagnostic Code 5261 is warranted if the evidence shows leg extension limited to 15 degrees. The Veteran is entitled to a 30 percent disability rating for leg extension limited to 20 degrees. Extension limited to 30 degrees warrants a 40 percent rating. Finally, extension limited to 45 degrees warrants a 50 percent rating. A veteran who has both compensable limitation of flexion and compensable limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. See VAOPGCPREC 9-04 (September 17, 2004). During the pendency of the appeal, the rating criteria for evaluating recurrent subluxation or lateral instability of the knee under 38 C.F.R. § 4.71a, Diagnostic Code 5257 were amended, effective February 7, 2021. 85 Fed. Reg. 76453. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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 that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. Prior to February 7, 2021, Diagnostic Code 5257 evaluated recurrent subluxation or lateral instability of the knee. It provided a 10 percent disability rating for slight recurrent subluxation or lateral instability. A 20 percent disability rating was warranted for moderate recurrent subluxation or lateral instability. Severe recurrent subluxation or lateral instability warranted a 30 percent disability rating. The United States Court of Appeals for Veterans Claims recently held that nothing in Diagnostic Code 5257, under the pre-amendment rating criteria, provided that objective medical evidence is required or is to be favored over lay evidence in determining whether to assign a rating for lateral instability of the knee. English v. Wilkie, 30 Vet. App. 347, 349 (2018). The words "slight," "moderate" and "severe" are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just.38 C.F.R. §4.6. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Under the amended criteria for rating recurrent subluxation or instability, a 10 percent disability rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g. cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent disability rating is warranted for either: (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation warrants a maximum 30 percent disability rating. Under the amended criteria for rating patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker warrants a 20 percent rating. A maximum 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Diagnostic Code 5257, Note (1), as amended, defines the patellofemoral complex as consisting of the quadriceps tendon, the patella, and the patellar tendon. Note (2) instructs that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Finally, the "amputation rule" prohibits a combined rating in excess of 60 percent for all disabilities at and below the level of the knee, as the rating schedule prescribes a 60 percent rating for amputation above the knee. See 38 C.F.R. § 4.68 (amputation at middle or lower third of thigh). The Veteran has received several diagnoses affecting the right knee. These include a meniscal tear, osteoarthritis, and chondromalacia. He also has a history of surgical repair for a torn right knee meniscus with the most recent surgery occurring in July 2011. See November 2017 VA examination report. During the period on appeal, the Veteran received an initial VA examination of his right knee in March 2012. Although the Veteran "states that he had full range of motion of the right knee," range of motion (ROM) testing revealed that right knee flexion was limited to 140 degrees (normal flexion), but right knee extension was to no more than 20 degrees. Although the Veteran complained of swelling of the knee and pain over the "right knee medial compartment," examination of the knee provided no evidence of swelling and palpitation of the medial and lateral compartment was "negative." The examiner found that right knee ligaments were "stable"; however, the Veteran relied on a brace and cane for ambulation at the examination. The examiner completed active and passive ROM testing. Numerous records dated between the Veteran's March 2012 and February 2016 VA examinations of the right knee provide evidence of right knee instability and falls due to instability. In September 2012, the Veteran reported a fall within the past 12 months due to his right knee buckling. See VA clinical reminders note dated September 6, 2012. In January 2013, he reported that he felt "like his knee was going to give out any moment" and stated that "he was walking and his knee gave out on him which then created a light 'snap' followed by lots of pain." See VA primary care E & M note dated January 4, 2013. In April 2013, the Veteran complained of "R great toe pain after falling last night" because his "R knee gave out." VA emergency department note dated April 25, 2013. In February 2015, he confirmed that he was still experiencing "knee sensation of locking and giving out." VA primary care general note dated February 3, 2015. The Veteran next received a VA examination of his right knee in February 2016. ROM testing revealed full range of motion of the right knee (flexion to 140 degrees and extension to 0 degrees); however, as correctly noted by the June 2017 Board decision and July 2020 JMPR, testing during the examination did not comply with Correia. Nonetheless, during the examination, the Veteran reported that his right knee gives out "weekly" despite use of a brace and "constant" swelling and painful motion. Joint stability testing during the examination was normal. Assistive devices (and frequency of use) included a brace (constant), cane (constant), and walker (regular). Regarding functional impact of the Veteran's right knee symptoms, the examiner observed that the Veteran could not "stand, sit, or walk for more than 10 minutes" and could not "do stairs, squat, or kneel." Finally, the Veteran received a VA examination for his right knee in November 2017. Initial ROM testing revealed normal right knee flexion and extension. In addition, there was no additional functional loss after 3 repetitions; as such, the examiner opined that there would be no additional functional loss after repeated use over time. However, the Veteran reported higher levels of pain "when he is up [for] 30 minutes." He again complained of swelling, locking, and giving way while standing and identified use of stairs both ascending and descending as particularly troublesome. Based on the above, the examiner estimated that right knee flexion would be limited to 120 degrees and right knee extension would be to no more than 20 degrees during flare-ups. As during the February 2016 examination, joint stability tests were normal. There was pain on active and passive ROM testing and on both weight-bearing and nonweight-bearing. At the time of examination, the Veteran relied on regular use of a brace and constant use of a cane. In addition to the functional impairments described during the February 2016 examination (identified as continuing problems by the November 2017 examiner), the examiner described impairments to lifting and bathing. Despite the Veteran's subjective reports of right knee instability and falls during the period on appeal, joint stability testing during the period on appeal, in addition to the findings of the VA examiners (described above), revealed no objective evidence of joint stability. See, e.g. VA orthopedic surgery note dated April 4, 2018 (negative drawer and Lachman tests). An August 2018 MRI of the Veteran's right knee yielded impressions of patellofemoral disorder and chondromalacia patellae but did not provide evidence of a re-tear of the meniscus. Nevertheless, the plan of care reflects prescription of a right knee brace. See orthopedic surgery note dated August 16, 2018. Finally, there is no evidence of ankylosis, or the functional equivalent, i.e. immobility of the right knee joint, during flare-ups, during the period on appeal. Based on the foregoing, a 30 percent disability rating is warranted for the Veteran's service-connected right knee disability for the entire period on appeal (up to November 29, 2017). In this regard, evidence shows that the Veteran's right knee disability was most closely manifested by limitation of extension to no less than 20 degrees, including consideration of additional functional loss following repeated use over time and during flare-ups. Notably, the Veteran's reports of pain on motion, swelling, and functional impairments including difficulty walking and standing remained consistent throughout the period of appeal. Although the Veteran reported full ROM of the right knee during the initial March 2012 VA examination, ROM testing during the examination revealed otherwise, with extension recorded as limited to no less than 20 degrees. This objective finding is afforded more weight than the Veteran's recorded statement during the examination. In fact, the Veteran's September 2014 VA Form 9 suggests that he denies making such a statement. Furthermore, the March 2012 and November 2017 examinations, which included both active and passive ROM testing, are afforded more weight than the February 2016 examination, which did not. Accordingly, the criteria for a disability rating of 30 percent for the Veteran's service-connected right knee disability for the period prior to November 29, 2017 are met. However, a disability rating in excess of 30 percent for the service-connected right knee disability prior to November 29, 2017 is not warranted. At no time prior to (and including) November 29, 2017 was the Veteran's right knee disability manifested by limitation of extension to worse than 20 degrees, including consideration of additional functional loss after repeated use over time and during flare-ups. Accordingly, the criteria for a disability rating in excess of 30 percent prior to November 29, 2017 have not been met. Turning to consideration of the service-connected right knee subluxation or lateral instability, given the Veteran's history of surgical repair for a meniscus tear and prescribed use of a knee brace and other assistive devices, the Veteran's right knee subluxation or lateral instability will evaluated under both the pre- and post-amendment criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5257 from February 9, 2021. However, prior to February 9, 2021, only the old criteria will be applied. Initially, an initial disability rating of 20 percent for the service-connected right knee subluxation or lateral instability under the pre-amendment criteria is warranted. In this regard, there is probative lay evidence of right knee locking, buckling, and giving way. Furthermore, the evidence shows that the Veteran has a history of falls due to right knee instability. Therefore, the level of impairment associated with the right knee disability is more consistent with moderate recurrent subluxation or lateral instability. Accordingly, the criteria for an initial disability rating of 20 percent for the Veteran's right knee subluxation or lateral instability under the old criteria have been met. However, an initial disability rating in excess of 20 percent for the service-connected right knee subluxation or lateral instability is not warranted. In this regard, there is no objective evidence of joint instability. This is not consistent with severe right knee subluxation or lateral instability. Accordingly, the criteria for an initial disability rating in excess of 20 percent for the Veteran's right knee subluxation or lateral instability have not been met. Furthermore, under the criteria effective from February 9, 2021, a disability rating in excess of 20 percent for the service-connected right knee subluxation or lateral instability is not warranted. Specifically, regarding the amended criteria for rating subluxation or lateral instability, there is no evidence of an unrepaired ligament tear or failed repair causing persistent instability. As noted above, an August 2018 MRI revealed no re-tear of the meniscus. Furthermore, regarding the amended criteria for rating patellar instability, there is no evidence that the Veteran has undergone surgical repair involving one or more patellofemoral components (quadriceps tendon, the patella, and the patellar tendon). As noted above, the Veteran's history of right knee surgical repair involves the meniscus rather than a patellofemoral component. Accordingly, the criteria for the 30 percent rating under the amended Diagnostic Code 5257 both under the criteria for rating subluxation or lateral instability and patellar instability for the Veteran's right knee subluxation or lateral instability have not been met. Finally, given the 30 percent rating for right knee limitation of flexion, 20 percent rating for dislocation of semilunar cartilage, and 20 percent rating for recurrent subluxation or lateral instability, the Veteran's right knee carries a combined 60 percent disability rating. As noted above, the "amputation rule" prohibits a combined rating in excess of 60 percent for all disabilities at and below the level of the knee, as the rating schedule prescribes a 60 percent rating for amputation above the knee. See 38 C.F.R. § 4.68. As the Veteran's right knee has been assigned a combined 60 percent disability rating for the full period on appeal, no further increases are available for disabilities of the right knee. TDIU 3. Entitlement to a TDIU due to service-connected disabilities for the period on appeal prior to September 20, 2013. As noted in the introduction, a claim for TDIU was reasonably raised by the Veteran's claim for increased rating. As VA received these claims on January 31, 2012, consideration of whether a TDIU is warranted from that date or otherwise prior to the current September 20, 2013 effective date is necessary. See Harper v. Wilkie, 30 Vet. App. 356, 362 (2018); see also July 2020 JMPR. 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 as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. In determining unemployability, consideration should be given to the veteran's prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Faust, 13 Vet. App. 342 (2000). Entitlement to a TDIU does not require 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). All reasonable doubt as to any material matter, including the degree of disability, will be resolved in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 4.3. Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). As of the January 31, 2012 claim for increased rating, the Veteran's service-connected disabilities included a left inguinal hernia, ratable as 60 percent disabling, right knee disability, ratable as 30 percent disabling, degenerative arthritis of the lumbar spine, ratable as 20 percent disabling, right knee recurrent subluxation or lateral instability, ratable as 20 percent disabling, right knee semilunar cartilage dislocation, ratable as 20 percent disabling, traumatic arthritis of the proximal interphalangeal joint of the right index finger, ratable as 10 percent disabling, left lower extremity radiculopathy of the sciatic nerve, ratable as 10 percent disabling, and scar residuals of hernia surgery, ratable as noncompensable. Because the Veteran had one disability ratable as at least 60 percent disabling, or alternatively, one disability ratable as at least 40 percent disabling and other disabilities totaling at least 70 percent, the schedular criteria for assignment of a TDIU are met from January 31, 2012. Accordingly, the only remaining question is whether the Veteran's service-connected disabilities preclude substantially gainful employment consistent with his education and work history prior to September 20, 2013. According to the Veteran's VA Form 21-8940 Application for Increased Compensation Based on Unemployability, received in January 2018, the Veteran completed high school and two years of college. His work history includes work as a window clerk, mental health technician, warehouse packer, and a home caretaker. Furthermore, Social Security Administration (SSA) records show that the Veteran also worked as a warehouse assembler, medical delivery driver, warehouse line coordinator, and restaurant food runner. See August 2014 SSA work history report. However, during the period on appeal, the Veteran worked only as a warehouse packer, between June and August 2014 (per the SSA work history report), and as a home caretaker, from May to August 2015. Notably, the Veteran's TDIU as currently assigned predates both of these periods of employment. SSA records show that the Veteran's only period of employment between January 2012 and September 2013 was a period of employment from June to August 2013 as a warehouse packer. See id. A statement from the Veteran's employer during this period reflects somewhat different dates of employment of July to November 2013. See November 2018 employer statement. However, the Veteran's former employer noted that weekly hours worked varied between "6-40 hours/week" and the Veteran's total income for the full period of employment was $2,074.38, or approximately $414.88 per month. Id. This results in annual income of $ 4,978.51, which is far below the poverty threshold for an individual under age 65 $12,119.00 in 2013 as established by the U.S. Department of Commerce, Bureau of the Census. Therefore, regardless of the exact dates of employment, the Veteran's employment in 2013 is considered marginal for TDIU purposes. 38 C.F.R. § 4.16(a). The August 2014 SSA work history report shows that the Veteran was required to stand for up to 7 hours as a warehouse packer and lift up to 100 pounds as a medical driver. His work history work history is also significant for kneeling and crouching; as a warehouse packer, the Veteran estimated that he would kneel and crouch for approximately 1 hour each daily and as a medical driver, he estimated up to 2 hours each of kneeling and crouching per day. See August 2014 SSA work history report. Prior to September 20, 2013, the Veteran's disabilities affecting the right knee resulted in symptoms of right knee pain, decreased ROM, instability, and swelling. These symptoms caused functional impairments including difficulty walking and standing for extended periods, and problems with lifting, bending, and climbing stairs. Next, the Veteran's disabilities stemming from his service-connected degenerative arthritis of the lumbar spine resulted in back pain and daily "activity related flare-ups" and functional impairments overlapping with those caused by the right knee. See August 2011 VA examination report. Furthermore, the Veteran's left inguinal hernia resulted in pain and inability to perform heavy lifting. See February 2016 VA examination report. After considering all of the evidence of record, including the Veteran's statements and the medical evidence, the Board finds that the preponderance of the evidence shows that the Veteran's service-connected disabilities preclude performance of substantially gainful employment as January 31, 2012, the date of the Veteran's claim for increased rating. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 77F.3d 1350, 1354 (Fed. Cir. 2013). Specifically, the Veteran's disabilities of the right knee, disabilities stemming from degenerative arthritis of the lumbar spine, and left inguinal hernia have been shown to result in impairments to walking, standing, lifting, bending, and climbing stairs. Accordingly, the Veteran's symptoms result in in inadaptability to work consistent with his history of employment, which involves largely physical employment. Although the Veteran last date of employment was in August 2013, the evidence shows that the Veteran was not able to maintain employment prior to that date. In this regard, as discussed above, his employment as a warehouse packer resulted in no more than marginal income and his weekly hours varied significantly. Thus, given the lay and medical evidence indicating the Veteran's functional limitations due to his service-connected disabilities, and in light of his work experience, training, and education, the preponderance of the evidence supports assignment of a TDIU from January 31, 2012, the date of the Veteran's original increased rating claim. Accordingly, assignment of a TDIU is warranted from January 31, 2012. DEA Effective Date 4. Entitlement to an effective date prior to September 20, 2013 for the award of DEA under 38 U.S.C. Chapter 35. In the present case, eligibility to DEA was previously established with an effective date of September 20, 2013. As the current decision results in a permanent and total combined disability for the entire period on appeal, or from January 31, 2012, the date that VA received the Veteran's claim for increased rating for a right knee disability, a claim for an earlier effective date for the award of eligibility for DEA benefits under 38 U.S.C. Chapter 35 is reasonably raised by the record. DEA benefits are payable to the child, spouse, or surviving spouse of a veteran if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. § 3510; 38 C.F.R. § 3.807(a). (Continued on the next page) In the above decision, the Veteran has been awarded a 100 percent combined disability rating from January 31, 2012. Therefore, the Veteran has been adjudicated to have permanent and total disability as of January 31, 2012. Accordingly, entitlement to eligibility for DEA benefits under 38 U.S.C. Chapter 35 from January 31, 2012 is warranted. S. Merrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.