Citation Nr: 21027995 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-06 962 DATE: May 10, 2021 ORDER Entitlement to a rating of 50 percent for posttraumatic stress disorder (PTSD) prior to October 22, 2018 is granted. A rating in excess of 70 percent for PTSD since October 22, 2018 is denied. Entitlement to a rating in excess of 40 percent for a left knee disability, status post knee replacement is denied. For the period prior to August 24, 2020, a separate rating of 10 percent, but no higher, for instability of the left knee is granted. For the period since August 24, 2020, a rating of 20 percent, but no higher, for instability of the left knee is granted. Entitlement to a compensable rating for a scar associated with the left knee replacement is denied. REMANDED Entitlement to a TDIU. FINDINGS OF FACT 1. Prior to October 22, 2018, the Veteran's PTSD is characterized by occupational and social impairment with reduced reliability and productivity. 2. Since October 22, 2018, the Veteran's PTSD is characterized by occupational and social impairment with deficiencies in most areas. 3. Entitlement to a rating in excess of 40 percent for a left knee disability, status post knee replacement. 4. For the period prior to August 24, 2020, the Veteran's left knee is characterized by slight instability. 5. For the period since August 24, 2020, the Veteran's left knee is characterized by moderate instability. 6. The Veteran's scar associated with the left knee disability does not cover an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.); cover an area of at least 144 square inches (929 sq. cm.); or, is described as painful or unstable. CONCLUSIONS OF LAW 1. Prior to October 22, 2018, the criteria for a rating of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.130, Diagnostic Code 9411. 2. Since October 22, 2018, the criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.130, Diagnostic Code 9411. 3. The criteria for a rating in excess of 40 percent for the left knee disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5299-5261. 4. For the period prior to August 24, 2020, the criteria for a separate rating of 10 percent for instability of the left knee have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 5. For the period since August 24, 2020, the criteria for a rating of 20 percent for instability of the left knee have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 6. The criteria for an initial compensable rating for a scar on the left knee have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to June 1967. In October 2018, the Veteran presented testimony during a videoconference hearing before the undersigned Veterans Law Judge of the Board. As stated then, and as stated now, we thank the Veteran for his service. A copy of the transcript is associated with the electronic claims file. In May 2019, the Board remanded the claims noted above to the Regional Office (RO) for additional development and consideration. The Board also remanded the claims of entitlement to service connection left and right hip disorders, a right ankle disorder, right foot disorder, and right great toe disorder. In a January 2021 rating decision, the RO granted service connection for these disorders, which constitutes a full grant of the benefits sought on appeal. Therefore, the Board no longer has jurisdiction over these issues, and they will not be addressed. Increased Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012). Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2018); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. PTSD The Veteran is seeking entitlement to a rating in excess of 30 percent for PTSD prior to April 21, 2016, a rating in excess of 50 percent from April 21, 2016 to August 24, 2020, and a rating in excess of 70 percent thereafter. As the Veteran submitted his increased rating claim on May 31, 2011, the relevant temporal focus for this issue is from May 31, 2010. 38 C.F.R. § 3.400. The Veteran's psychiatric disorder is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, the criteria for a 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. The criteria for a 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. The criteria for a 70 percent rating are: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. The criteria for a 100 percent rating are: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. VA implemented DSM-5, effective August 4, 2014, and determined that the DSM-5 applies to claims certified to the Board on and after August 4, 2014. See Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093-94 (Aug. 4, 2014). As the Veteran's claim for a higher rating was originally certified to the Board in June 2016, the DSM-IV is not for application in this case. Relevant Factual Evidence The Veteran filed his claim for an increased rating in May 2011 on account of an increase in his anger/rage, emotional turmoil, and nightmares. See May 2011 VA Form 21-526b, Supplemental Claim. The Veteran was examined by VA to assess the severity of his PTSD in October 2011. See October 2011 PTSD Disability Benefits Questionnaire (DBQ). At that time, a diagnosis of PTSD was confirmed. The symptoms noted on examination include depressed mood, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. The examiner also noted low frustration toleration and memories of military sexual trauma, which interferes with his ability to sexually perform with his wife of 27 years. Based on the above, the examiner noted a worsening of the Veteran's symptoms and concluded the Veteran's PTSD was characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. A subsequent October 2011 VA addendum opinion was authorized by the same examiner, however, no additional relevant information was provided. The Veteran was next examined by VA in April 2016. See April 2016 VA PTSD DBQ. At that time, the examiner added the diagnosis of alcohol use disorder, which has been associated with the service-connected PTSD. The symptoms noted on examination include depressed mood, anxiety, suspiciousness, panic attacks that occur twice a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty and an inability in establishing and maintaining effective social and work relationships, and difficulty in adapting to stressful situations. The examiner also noted anger issues. Based on the above, the examiner concluded the Veteran's PTSD was characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The report of the January 2020 VA PTSD DBQ includes the symptoms previously found in the October 2011 and April 2016 VA PTSD DBQs, including anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful situations. The examiner also noted the Veteran was dysphoric with a restricted affect. Further, there was no indication of auditory, visual, or tactile hallucinations. The examiner also found no evidence of thought disorders, delusions or paranoid ideation, or suicidal and homicidal ideations. Insight, judgment, and impulse control were fair. Based on the above, the examiner concluded the Veteran's PTSD was characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran was also examined by VA in August 2020. See August 2020 VA PTSD DBQ. The examiner noted the symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful situations, and impaired impulse control, such as unprovoked irritability with periods of violence. An additional symptom identified by the VA examiner was that the Veteran self-isolates. The examiner also noted the Veteran was dysphoric with a restricted affect. Further, there was no indication of auditory, visual, or tactile hallucinations. The examiner also found no evidence of thought disorders, delusions or paranoid ideation, or suicidal and homicidal ideations. Insight, judgment, and impulse control were fair. Based on the above, the examiner the examiner concluded the Veteran's PTSD was characterized by occupational and social impairment with reduced reliability and productivity. Also of record are a significant number of a VA mental treatment records and private treatment records. However, there are no additional objective findings that are materially different from the symptoms noted in the VA examination reports conducted during the appeals period. As for the Veteran's statements regarding the severity of his disability, his January 2012 notice of disagreement (NOD), received by VA in February 2012, indicates his belief that his PTSD is a chronic and severe condition that effects every aspect of his life. He stated that he is unable to deal with others, unable to sleep, suffers from depression, overwhelming feelings of sadness and guilt, anger/ rage, and has difficulty focusing/concentrating. See February 2012 NOD. The Veteran further expounded upon his symptoms in his February 2014 VA Form 9 and stated that he is unable to control feelings and emotions, suffers weekly panic attacks, feels unmotivated to do even basic daily routines, and does not want to establish connections to anyone or anything outside of his "small world." See February 2014 VA Form 9. During the Veteran's October 2018 Board hearing, he stated that he was experiencing nightmares, frequent panic attacks, practices avoidance tendencies, and experiences suicidal ideations, but is "put back on track" by thoughts of his family. The Veteran was unable to identify when exactly the suicidal ideations began or how frequently they occurred. Legal Analysis Period Prior to October 22, 2018 Following a review of the lay and medical evidence, the Board finds that the evidence supports a rating of 50 percent for the period prior to October 22, 2018. Prior to October 22, 2018, the Veteran's PTSD is characterized by depressed mood, anxiety, suspiciousness, panic attacks that occur twice a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty and an inability in establishing and maintaining effective social and work relationships, and difficulty in adapting to stressful situations. See October 2011 and April 2016 VA PTSD DBQs. Anger issues were also noted by the April 2016 VA examiner. Further, the Veteran reported anger/rage issues, chronic sleep impairment, nightmares, depression, and panic attacks. See February 2012 NOD; see also February 2014 VA Form 9. The Board further finds that the preponderance of the evidence is against an evaluation in excess of 50 percent prior to October 22, 2018, since the symptoms or the effects of the symptoms set out for these levels of impairment are absent from the record. The evidence does not show that the Veteran has occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; spatial disorientation; neglect of personal appearance and hygiene; hallucinations; or suicidal/ homicidal ideations. Instead, the Veteran's occupational and social impairment has been consistently described as occasional as reported in the October 2011 and April 2016 VA examination reports. See October 2011, April 2016 VA PTSD DBQs Indeed, while the Board acknowledges that the Veteran has reported some of the symptoms associated with a 70 percent rating, such as anxiety, difficulty in adapting to stressful circumstances, including work or a work like setting; and, an inability to establish and maintain effective relationships, the totality of the Veteran's PTSD supports a rating of 50 percent, based on the severity, frequency, and duration of his symptoms as noted by the October 2011 and April 2016 VA examiners. Specifically, it is reported that the Veteran has panic attacks, but the duration is weekly or less often or maybe twice a week, and is not consistent with the 70 percent rating where the frequency and duration would be near-continuous. See October 2011 and April 2016 VA examinations. In looking at the Veterans social and occupational functioning, he reported that he does have family and friends with whom he spends time. Id. He also indicated that he has never been disciplined at work, or fired and, in fact, has been employed at the same location for over 20 years. Id. Therefore, while the Board does not discount the Veteran's symptoms, it also must find that, when looking at the period prior to October 22, 2018, the Veteran's symptoms are not of the frequency, severity, and duration to warrant the next higher 70 rating. Thus, the evidence does not support a rating in excess of 50 percent as he has not endorsed any of the other symptoms above required for the higher 70 or 100-percent ratings for the period prior to October 22, 2018. Period Since October 22, 2018 From October 22, 2018, the Board concludes that the Veteran's psychiatric disorder warrants a 70percent rating. In reaching this determination, the Board finds his psychiatric disability has been manifested by occupational and social impairment due to anxiety, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and isolation tendencies. See January 2020 VA PTSD DBQ, see also August 2020 VA PTSD DBQ. Further, during the October 2018 Board hearing, the Veteran endorsed suicidal ideations. The Board further finds that the preponderance of the evidence is against an evaluation in excess of 70 percent since the symptoms or the effects of the symptoms set out for these levels of impairment are absent from the record. Specifically, there is simply no evidence to support a finding that the Veteran's PTSD results in total occupational and social impairment. Rather, from a review of the record, the Veteran's occupational and social impairment has been consistently described as occasional. See January 2020 VA PTSD DBQ; see also October 2011 and April 2011 VA PTSD DBQs. To this end, the evidence does not include any mention of the following symptoms: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In reaching the above conclusions, the Board has not overlooked the Veteran's statements found in the record. In this regard, the Veteran's statements as to the severity of his psychiatric disorder are credible and he is certainly competent to report how he believes his disorder has affected his life, including describing his symptoms. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, to the extent the Veteran believes he is entitled to ratings higher than 50 percent prior to October 22, 2018, and a rating of 70 percent since, the Board finds the medical opinions provided by the clinical providers to be more probative regarding the severity of the Veteran's psychiatric disability. Moreover, it appears that the examiners considered the Veteran's lay statements in providing their assessment of the Veteran's disabilities. Given such, the opinions were based on a review of the totality of the evidence, and the observable symptoms as demonstrated in the VA examinations conducted during the period on appeal. Accordingly, for the period prior to October 22, 2018, the Board finds a rating of 50 percent is warranted. However, to the extent the Veteran seeks a rating in excess of 50 percent prior to October 22, 2018, or a rating in excess of 70 percent since, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Left knee disability, status post knee replacement The Veteran filed a claim for a rating in excess of 40 percent for the left knee disability, post knee replacement, in April 2016. By way of background, the Veteran was initially granted service connection for a left knee disability in a December 1967 rating decision, and assigned an initial rating of 0 percent, effective from October 1, 1967, pursuant to Diagnostic Code 5257. An April 2005 rating decision then increased the Veteran's rating to 10 percent, effective from November 3, 2004, pursuant to Diagnostic Code 5257-5010. A May 2006 rating decision granted the Veteran a separate rating of 10 percent for limitation of extension, effective from November 3, 2004, pursuant to Diagnostic Code 5010-5261. This same rating decision changed the Veteran's diagnostic code from 5257-5010 to 5010-5260 for limitation of flexion, continuing the 10 percent rating. Thereafter, a May 2008 rating decision increased the Veteran's rating for limitation of extension (5010-5261) to 30 percent; granted a separate 20 percent rating based on instability pursuant to Diagnostic Code 5257; and, reduced the Veteran's rating for limitation of flexion from 10 percent to 0 percent, all effective from March 30, 2007. On January 30, 2014, the Veteran underwent surgery for a total left knee replacement. In February 2015, the RO granted the Veteran a temporary 100 percent rating following a total left knee replacement, pursuant to the note following Diagnostic Code 5055 and in compliance with 38 C.F.R. § 4.130, effective from January 30, 2014 to March 1, 2015. Effective from March 1, 2015, the RO assigned a 40 percent rating pursuant to Diagnostic Code 5299-5261. In August 2016, in response to the Veteran's February 2016 claim for an increased rating, the RO issued the rating decision currently on appeal, which decreased the Veteran's left knee rating from 40 percent to 30 percent, effective from June 22, 2016, pursuant to Diagnostic Code 5055. In the prior May 2019 decision, the Board restored the 40 percent rating from June 22, 2016, which was effectuated in a June 2019 rating decision. Hyphenated Diagnostic Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2020). The additional Code, shown after the hyphen, represents the basis for the rating, while the primary Code indicates the underlying source of the disability. For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71a , Plate II. VA recently published a final rule amending its regulations on musculoskeletal disabilities, including some diagnostic codes pertaining to the knees, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. However, "the case law is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive." Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011) (citing Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003)). Here, the recently revised regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, for the period beginning February 7, 2021, the version more favorable to the Veteran will apply. The only changes applicable in the present appeal, pertains to Diagnostic Code 5257, which is discussed below. Diagnostic Codes 5260 and 5261 contemplate a rating based on limitation of motion, which provide that limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a , Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. For the version of Diagnostic Code 5257 in effect since February 7, 2021, recurrent subluxation or instability warrants a 10 percent rating 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. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). A 20 percent rating is warranted for one of the following: a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s),crutch(es), walker) for ambulation; or, b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation. See id. A 30 percent rating is warranted for 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. See id. Also under Diagnostic Code 5257, patellar instability warrants a 10 percent rating 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. See id. A 20 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 one of the following: a brace, cane, or walker. See id. 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. See id. Note (1) following Diagnostic Code 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states 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). See id. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA General Counsel has held that a claimant may be rated separately under Code 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98 (Aug. 1998). Diagnostic Code 5055, which governs knee replacement (prosthesis), provides for a 100 percent rating evaluation for one year after implantation of the prosthesis. Thereafter, the residuals of the knee replacement are to be rated as follows: a 60 percent rating is warranted where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion, are to be rated by analogy to Codes 5256, 5261, 5262. The minimum rating for a prosthetic knee replacement is 30 percent. 38 C.F.R. § 4.71a. Additionally, ratings of the knee may also be assigned under other Diagnostic Codes. Diagnostic Code 5256 evaluates ankylosis of the knee. Diagnostic Code 5258 evaluates disabilities pertaining to the cartilage or semilunar (which is synonymous with the meniscus). Diagnostic Code 5259 also evaluates impairment of the semilunar cartilage (meniscus). Diagnostic Code 5262 evaluates impairment of the tibia and fibula. Diagnostic Code 5263 evaluates genu recurvatum. However, as will be discussed below, the record contains no evidence of above-mentioned impairments. As such, no further discussion is warranted regarding these diagnostic codes. Following his claim for an increased rating in February 2016, the Veteran was examined by VA in June 2016 to determine the current severity of his left knee disability. At that time, the Veteran denied experiencing flare-ups or functional limitations of the left knee. Range of motion testing revealed flexion to 100 degrees and extension to 0 degrees, with no objective evidence of pain on motion. The examiner did note objective evidence of mild localized tenderness or pain on palpation. There was no additional limitation of motion following repetitive testing, and no evidence of functional loss. There was no evidence of pain on weight-bearing, muscle atrophy, ankylosis, subluxation, instability, effusion, shin splints, or meniscal conditions. However, the examiner noted the Veteran suffered from intermediate degrees of residual weakness, pain or limitation of motion as residuals of his January 2014 knee replacement surgery. Further, the scar of the left knee was not found to be unstable or pain, and measuring length 12 centimeters (cm) by 0.3 cm. Finally, the Veteran required the occasional use of a cane. There was no evidence of any functional limitations as a result of the Veteran's left knee disability, to include any impact on employment. In compliance with the Board's prior May 2019 remand, the Veteran was again examined by VA in August 2020. At that time, the examiner confirmed diagnoses of left knee ligamentous laxity and osteoarthritis. The Veteran reported ongoing daily pain, stiffness, soreness, and that the left knee locks up. The examiner noted the use of a cane or walker all the time, partly due to the risk of falling from the left knee. The Veteran denied experiencing flare-ups, but reported functional limitations including difficulty with prolonged walking, standing, squatting, lifting, stairs, and rising from a chair. Range of motion testing revealed flexion to 110 degrees and extension to 0 degrees, with objective evidence of pain on motion for each direction. The examiner found pain on weight-bearing, non weight-bearing, and objective evidence of crepitus, but there was no objective evidence of mild localized tenderness or pain on palpation. Following repetitive use, the examiner noted flexion to 90 degrees and 0 degrees on extension. The examiner found pain, weakness, lack of endurance, and fatigue following repetitive use. Finally, the examiner noted that the examination was not conducted immediately after repetitive use over a period of time but stated that it was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. There was no evidence of muscle atrophy, ankylosis, effusion, shin splints, or meniscal conditions. However, the examiner noted the Veteran suffered from reduced muscle strength due to his left knee disability. Further, the examiner noted evidence of medial instability. The examiner also noted intermediate degrees of residual weakness, pain or limitation of motion of the left knee following the surgery in 2014. Finally, the scar of the left knee was not found to be unstable or pain, and measuring 18 cm by 0.2 cm. The Board has considered whether a rating in excess of 40 percent based on limitation of extension pursuant to Diagnostic Code 5261 is warranted. However, the record shows the Veteran's extension has been 0 degrees throughout the pendency of the appeal. In order to obtain the highest 50 percent rating, extension must be limited to 45 degrees, which is not shown by the evidence of record. He is already in receipt of a 40 percent rating under this code, which the Board will not disturb either the rating or discuss changing the Veteran's diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board has also considered whether a separate rating based on limitation of flexion is warranted. However, the Veteran's flexion has been shown to be limited to, at most, 90 degrees, which is well in excess of the 60 degree limitation required for a noncompensable rating pursuant to Diagnostic Code 5260. See August 2020 VA Knee and Lower Leg Conditions DBQ. Additionally, whether the Veteran's knee disability resulted in a level of functional loss greater than that already contemplated by the assigned rating at any point during the appeal period has also been considered. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, the VA examinations and treatment records note the left knee disability was characterized by pain and limitation of flexion. However, the rating schedule is intended to allow for compensation for painful motion of a joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Thus, the evidence does not reflect functional loss that is not already contemplated by the assigned rating of 40 percent. Further, to the extent the June 2016 or August 2020 VA examinations failed to comply with the holdings in Correia or Sharp, either individually or collectively, such non-compliance is harmless error. In this respect, the Veteran has never alleged flareups of the left knee. The June 2016 examiner noted no evidence of pain on weight-bearing. While the August 2020 VA examiner noted pain on weight-bearing and non-weight bearing, the Veteran's flexion was limited to, at most, 90 degrees, which is still in excess of the 60 degrees limitation required for a compensable rating. See August 2020 VA Examination. Turning to whether the Veteran is entitled to a separate rating based on instability of the left knee, the Board finds that the objective evidence of record supports the assignation of a 10 percent rating pursuant to the regulations in effect prior to February 7, 2021. The Board notes, in so finding, the report from the June 2016 VA examination of the need for the occasional use of a brace or cane. As such, a rating of 10 percent, but no higher, for slight instability of the left knee is warranted. The Board further finds that the Veteran's instability warrants a 20 percent rating from August 24, 2020, on account of the Veteran's constant use of the brace and cane, and that the VA examiner specifically found him to be considered a "fall risk." As such, the next higher rating of 20 percent, but no higher, is warranted for moderate instability of the left knee is warranted. As for the regulations in effect since February 7, 2021, the Board does not find application of these regulations to be more advantageous to the Veteran and has, therefore, applied the prior version. Specifically, prior to August 24, 2020, a rating higher than 20 percent requires evidence of one of the following: 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) 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), or a walker) or bracing for ambulation. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). As there is no evidence of a ligament tear, the Veteran is not able to receive a higher rating. Alternatively, a 20 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 one of the following: a brace, cane, or walker. However, as the Veteran has never been diagnosed with patellofemoral complex, a 20 percent rating is not warranted. See id. Similarly, for a rating in excess of 20 percent, which again would only be effective from February 7, 2021, a 30 percent rating is warranted for 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. See id. As there is no evidence of a ligament tear, failed or unrepaired, a 30 percent rating is not for application. In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his left knee disability. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his knee. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through his oral testimony during the course of his Board hearing, VA examinations, and treatment for his left knee disability. He is competent to provide such statements, and the Board finds that the Veteran's statements to be credible. The Veteran's reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran's reports with respect to pain in evaluating his assigned rating. However, he does not have the medical expertise to comment on the types of findings required are not readily observable by a lay person, such as his specific ranges of motion. Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. Left knee scar The Veteran is seeking an initial compensable rating for the scar on the left knee associated with his left knee replacement surgery. 38 C.F.R. § 4.118, Diagnostic Code 7805. By way of background, the RO assigned a 0 percent rating, effective from January 30, 2014. Therefore, this is an appeal of the initial rating assigned and the entire evidence of record must be considered. VA recently published a final rule amending its regulations on skin disabilities effective August 13, 2018, which occurred prior to the issuance of the September 2018 Board decision. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. However, "the case law is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive." Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011) (citing Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003)). Here, the recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, for the period beginning August 13, 2018, the version more favorable to the Veteran will apply. Under the scar regulations in effect prior to August 13, 2018, scars that, as here, do not impact the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805. Under Diagnostic Code 7801, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. §§ 4.118, Diagnostic Code 7801 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7802, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is superficial and nonlinear, and covers an area of at least 144 square inches (929 sq. cm.). 38 C.F.R. §§ 4.118, Diagnostic Code 7802 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable of painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7805, any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect from October 23, 2008 to August 13, 2018). Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 square centimeters) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 square centimeters) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 square centimeters) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 square centimeters) are rated as 40 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801 (in effect since August 13, 2018). Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) or greater is rated as 10 percent disabling. 38 C.F.R. §§ 4.118, Diagnostic Code 7802 (in effect since August 13, 2018). Diagnostic Code 7804 was not changed in the August 13, 2018 regulation changes. Again, it provides that one or two scars that are unstable or painful are rated as 10 percent disabling. Three or more scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to Diagnostic Code 7804 provides that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. 38 C.F.R. §§ 4.118, Diagnostic Code 7804 (in effect since August 13, 2018). Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect since August 13, 2018). Here, the June 2016 VA Knee and Lower Leg Conditions DBQ and June 2016 VA Scars DBQs noted a scar on the left knee that was 12 cm in length. It was not found to be stable or unpainful. No other objective findings were noted. Similarly, the August 2020 VA Knee and Lower Leg Conditions and August 2020 VA Scars DBQs noted the left knee scar to be asymptomatic, with no evidence of instability or pain. Further, there was no treatment for the scar. The Veteran's VA and private treatment records do not document any complaints or treatment for the scar during the pendency of this appeal, noting only the existence of the scar during his various examinations and treatment visits. Based on the evidence as discussed above, the Board does not find a compensable rating is warranted as the evidence does not show the Veteran is entitled to compensable ratings under Diagnostic Codes 7801, 7802, or 7804 under either the regulations prior to August 13, 2018, or since. Specifically, for the criteria prior to August 13, 2018, the scar was not found to be deep and nonlinear, and covering an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.) Diagnostic Code 7801); superficial and nonlinear, and covering an area of at least 144 square inches (929 sq. cm.) (Diagnostic Code 7802); or, described as painful or unstable (Diagnostic Code 7804). See June 2016 and August 2020 VA Knee and Lower Leg Conditions DBQs; see also June 2016 and August 2020 VA Scars DBQs. For the criteria in effect since August 13, 2018, the scar does not result in underlying soft tissue damage in an area or areas exceeding 6 square inches (Diagnostic Code 7801); not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) (Diagnostic Code 7802); or, described as painful or unstable (Diagnostic Code 7804). See id. Pursuant to Diagnostic Code 7805, there are no other disabling effects not previously considered that would warrant a compensable rating in either the criteria in effect prior to or since August 13, 2018. See id. Thus, the medical evidence of record contains no evidence showing that the Veteran's disability results in findings that would warrant the assignment of an initial compensable rating. Finally, the Board has considered any statements made by the Veteran or his representative in support of his appeal. However, there have been no arguments put forth that would warrant a compensable rating for the Veteran's scar of the left knee. Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to a TDIU prior to August 24, 2020 The Board finds a remand is required for the period prior to August 24, 2020 to determine whether the Veteran was engaged in what may be considered at least "marginal employment" during this period. There is no regulatory definition of "substantially gainful employment." 38 C.F.R. § 4.16 (a) provides guidance in that it states: "Marginal employment shall not be considered gainful employment." It also says definitively that marginal employment exists 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. 38 C.F.R. § 4.16 (a). Even if the income exceeds the poverty threshold, marginal employment may still exist on a facts-found basis. One example given is employment in a protected environment like a family business or a sheltered workshop. 38 C.F.R. § 4.16 (a). VA must consider the nature of employment. Id. In relevant part, the April 2016 VA PTSD DBQ and June 2016 VA medical opinion noted the Veteran was employed full time and not experiencing any problems due to only his PTSD. However, the June 2016 VA examiner did note the Veteran's statement that he is no longer able to perform his job duties due to substantial pain in his left knee following injury and subsequent replacement, pain in his lower left leg, pain in his right hand following surgery with finger release, carpal tunnel in both hands, pain in his hip following hip replacement, and difficulty balancing due to one leg being 3 inches longer than the other. The January 2020 VA PTSD DBQ determined the Veteran was only partially unable to adapt to changes or stress and demands at work and concentrate/ interact with customers and coworkers. Overall, it was concluded that the Veteran's PTSD impacts him but does not render him unemployable. It was specifically noted that the opinion did not take into consideration the totality of all his service-connected medical conditions. See January 2020 VA PTSD DBQ. Further, as noted above, during the August 2020 VA PTSD DBQ, the VA examiner specifically noted the Veteran stopped working in June 2020, but a date was not specified, nor was the manner of work. Finally, in direct contrast to the VA DBQ findings is the May 2016 VA Form 21-8940, on which the Veteran reported that he last worked in May 2016 as a mail clerk for the Combined Benefits Administration, where he had worked since 1995, as a result of his disabilities. Here, the difference between employment or having only marginal employment impacts the decision as to entitlement to TDIU. As such, the Board finds it necessary to remand in order to seek clarification from the Veteran, and/or his former employer as to the amount he earned in the twelve-month period preceding his last day of employment. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016). The Veteran should be given the opportunity to submit further evidence related to the details of his employment, or lack of employment, since 2011, including the length of, and the reasons for, any period of unemployment. Additionally, the August 2020 VA PTSD DBQ noted the Veteran stopped working sometime in June 2020 due to cirrhosis of the liver and kidney failure, but was not going often prior to that date. The examiner noted that, since the last examination, in January 2020, the Veteran had serious medical issues resulting in an in-patient stay of more than five weeks then rehabilitation, including cirrhosis or the liver and kidney failure, which has increased his impairment. The examiner then concluded that, while PTSD alone does not preclude the Veteran from seeking gainful employment, the totality of his disabilities make him as least likely as not precluded from gainful employment. The Board finds that the examiner should provide an addendum, to this opinion as it is ambiguous where it cannot be ascertained if the examiner is referring only to this service-connected disabilities or is also including his nonservice-connected disabilities. The matters are REMANDED for the following action: 1. The AOJ is reminded that this appeal is an AOD appeal and, as such, expedited handing is requested. 2. Ask the Veteran to submit documents verifying his income (i.e., tax returns or W-2 forms) for each year from 2011 to 2020. 3. Make all necessary attempts to obtain the Veteran's income information from the Social Security Administration (SSA) or other appropriate agency from 2011 to the present. Do so regardless of whether the Veteran responds to the development efforts requested above. Document all attempts and any SSA responses. 4. Then, obtain a retrospective opinion on the extent to which Veteran's service-connected disabilities (many of which were granted in 2020 but have effective dates from 2011), had an impact on his ability to obtain and maintain employment from 2011 to 2020. 5. Request that the examiner explain how the Veteran's functional impairment affects his employability. Also when providing an opinion as to the Veteran's functional impairment as to his employability ONLY refer to his service-connected disability. 6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.