Citation Nr: 21029746 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 07-37 912 DATE: May 14, 2021 ORDER Entitlement to an initial disability rating greater than 30 percent for right knee limitation of extension is denied. Entitlement to an initial disability rating of 30 percent, but no higher, for right knee limitation of flexion is granted. Entitlement to a separate disability rating of 10 percent, but no higher, for right knee instability is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to July 27, 2005 is denied. Entitlement to a TDIU for the appellate period beginning October 11, 2011 is denied. REMANDED Entitlement to a TDIU for the appellate period from July 27, 2005 to October 10, 2011 is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability has been manifested by extension limited to no worse than 20 degrees, and the amputation rule precludes the assignment of a higher rating. 2. The Veteran's right knee disability has been manifested by flexion limited to 15 degrees, but not by ankylosis in flexion between 10 and 20 degrees, and the amputation rule precludes the assignment of a higher evaluation. 3. The Veteran's right knee disability has been manifested by slight lateral instability, and the amputation rule precludes the assignment of a higher evaluation. 4. The Veteran's TDIU claim application was received July 27, 2005, and there is no evidence to support the award of a TDIU prior to the date of claim. 5. For the appellate period beginning October 11, 2011, the Veteran has had substantially gainful employment, and there is no evidence that the employment was marginal or in a protected environment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 30 percent for right knee limitation of extension are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.68, 4.71a, Diagnostic Code (DC) 5261. 2. The criteria for an initial disability rating of 30 percent, but no higher, for right knee limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.68, 4.71a, DC 5260. 3. The criteria for a separate disability rating of 10 percent, but no higher, for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.68, 4.71a, DC 5257. 4. The criteria for entitlement to a TDIU prior to July 27, 2005 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 5. The criteria for entitlement to a TDIU beginning October 11, 2011 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in his case, served on active duty from October 1994 to October 1998. The Veteran also served with the Marine Corps Reserve and Army Reserve from 1998 to 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated June 2006 and July 2013 of a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2006 rating decision, the RO denied entitlement to a TDIU. In the July 2013 rating decision, the RO awarded initial disability ratings of 30 percent for right knee limitation of extension and 0 percent for right knee limitation of flexion. In May 2010, the Veteran testified regarding his claim for entitlement to a TDIU at a Travel Board hearing before a Veterans Law Judge (VLJ) who has now been appointed as the Board's Chairman. A transcript of the hearing is of record. The law prohibits the Chairman from participating in a proceeding as an individual member, but she may participate in a proceeding assigned to a panel. The law also provides a veteran the option of additional hearing(s) before the additional two VLJs assigned to the panel. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). In a December 2018 letter, the Board provided the Veteran an opportunity to request additional hearings within 30 days. To date, the Veteran has not responded. Therefore, the Board assumes that the Veteran does not want any additional hearings and it will proceed with reviewing this case. By way of procedural background, the Board remanded these matters for additional development in decisions dated March 2012, January 2013, October 2013, and February 2019. In its October 2013 decision, the Board remanded the issues of entitlement to initial disability ratings greater than 0 percent for right knee limitation of flexion, greater than 30 percent for right knee limitation of extension, and greater than 0 percent for right knee linear scars for the issuance of a Statement of the Case (SOC). However, the RO did not issue a SOC regarding these issues. In March 2018, the RO issued a Supplemental Statement of the Case (SSOC) addressing these three issues, stating it "will begin the certification process to return your appeal for a final decision." As the Veteran has been led to believe by the RO that these issues were on appeal to the Board and did not advise him any further action was needed on his part to perfect his appeal, the Board will accept jurisdiction. See Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board also remanded the issues of entitlement to service connection for gout of the left and right foot, and service connection for distal amputation of the right great toe for the RO to issue a SOC. A SOC was issued in July 2015, but the Veteran did not submit a VA Form 9. Thus, the Board does not have jurisdiction over these claims. In its February 2019 decision, the Board denied entitlement to an initial compensable disability rating (greater than zero percent) for right knee linear scars. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Ratings Claims Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required 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 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). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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). In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A layperson is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through the senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 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). 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. Therefore, the Board will consider the Veteran's claims under the former criteria prior to February 7, 2021 and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Relevant here, knee disabilities can be rated under DCs 5256 through 5263, and DC 5003 addresses disability ratings for degenerative arthritis. Prior to the regulatory change, the relevant rating criteria were as follows. DC 5256 provides ratings for ankylosis of the knee. Favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees is rated 30 percent disabling; in flexion between 10 degrees and 20 degrees is rated 40 percent disabling; in flexion between 20 degrees and 45 degrees is rated 50 percent disabling; and extremely unfavorable, in flexion at an angle of 45 degrees or more is rated 60 percent disabling. 38 C.F.R. § 4.71a, DC 5256 (as in effect prior to February 7, 2021). DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257 (as in effect prior to February 7, 2021). The words "slight," "moderate" and "severe" as used in various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. DC 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258 (as in effect prior to February 7, 2021). DC 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259 (as in effect prior to February 7, 2021). DC 5260 provides for the evaluation of limitation of flexion of the knee. A non-compensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260 (as in effect prior to February 7, 2021). Under DC 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261 (as in effect prior to February 7, 2021). In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), the Court held that in cases where the record reflects that the Veteran has multiple problems due to service-connected disability, it is possible for a Veteran to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. In this regard, VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both a compensable limitation of flexion under DC 5260, and a compensable limitation of extension under DC 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in different planes of movement were each compensable. Id. DC 5262 provides ratings for impairment of the tibia and fibula. A 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion and requiring a brace. 38 C.F.R. § 4.71a, DC 5262 (as in effect prior to February 7, 2021). Under DC 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5263 (as in effect prior to February 7, 2021). Genu recurvatum is a hyperextension of the knee. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (30th Ed. 2003) at 765. Under DC 5003, degenerative arthritis established by radiographic imaging/X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the diagnostic code, a 10 percent rating is for assignment for each major joint affected. A rating in excess of 10 percent is not available absent X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003 (as in effect prior to February 7, 2021). As of February 7, 2021, the changes to the DCs are as follows. Unless noted below, no changes were made to the relevant rating criteria. Under the revised version of DC 5257, a 10 percent rating is assigned for recurrent subluxation or instability involving 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 rating is assigned for recurrent subluxation or instability involving 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), walker) or bracing for ambulation. A 30 percent rating is assigned for recurrent subluxation or instability involving 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. 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, DC 5257). In cases of patellar instability, the revised DC 5257 provides for 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. 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 a brace, cane, or walker. A 30 percent rating is warranted for 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. Under Note (1), for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per Note (2), 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). 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, DC 5257). Under the revised version of 5262, a noncompensable rating is assigned for medial tibial stress syndrome (MTSS) or shin splints requiring treatment for less than 12 consecutive months of one of both lower extremities. A 10 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either show orthotics or other conservative treatment of one or both lower extremities. A 20 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment for one lower extremity. A 30 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment of both lower extremities. A 40 percent rating is assigned for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula must be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. 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, DC 5257). The rating criteria under DC 5003 did not change on February 7, 2021; however, the DC was changed to clarify that it only applied to degenerative arthritis, other than post-traumatic. Post-traumatic arthritis is separately rated under DC 5010. 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, DCs 5003, 5010). Finally, the "amputation rule" provides that the combined rating for disabilities of an extremity cannot exceed the rating for amputation at the elective level. 38 C.F.R. § 4.68. A 60 percent rating is assigned if there was an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71a, DC 5162. Amputation of a leg with defective stump and thigh amputation recommended or amputation not improvable by prosthesis controlled by natural knee action may also be assigned a 60 percent evaluation. 38 C.F.R. § 4.71a, DCs 5163 and 5164. Thus, considering the "amputation rule" pursuant to 38 C.F.R. § 4.68 and 38 C.F.R. § 4.71a, DCs 5161, 5162, 5163, and 5164, a 60 percent evaluation would be the maximum assignable schedular rating for the instant Veteran's right knee disability. The Board will address the issues of entitlement to increased ratings for the Veteran's right knee limitation of extension, limitation of flexion, and instability in turn below. 1. Entitlement to an initial disability rating greater than 30 percent for right knee limitation of extension The Veteran is currently in receipt of an initial disability rating of 30 percent for right knee limitation of extension. He asserts that a higher rating is warranted. On review of the evidence, both lay and medical, the Board finds that the criteria for a 30 percent disability rating under DC 5261 are more nearly approximated. Specifically, the Board finds that throughout the entire period on appeal, the Veteran's right knee disability has been manifested by extension limited to no worse than 20 degrees. During the December 2011 VA examination, which was documented in a January 2012 VA examination report, the Veteran reported symptoms including weakness, stiffness, lack of endurance, and fatigability in his right knee. He endorsed flare-ups as often as 1 time per day for 2 hours, rated as 8 out of 10 in severity, precipitated by physical activity, and resulting in an inability to stand for more than 5 minutes, pain when moving or flexing his knee joint, and difficulty with walking and running. When asked about his overall functional impairments due to his right knee, the Veteran stated that he was forced to quit his job in federal law enforcement and take a job paying $20,000.00 less per year. The VA examiner noted an antalgic gait related to right knee pain and indicated that the Veteran constantly used a cane. The Veteran was shown to have right knee extension to 20 degrees on initial range of motion (ROM), with consideration of pain. Repetitive ROM was found "not possible because unable to bend and support weight due to severe pain." The VA examiner did not estimate the Veteran's right knee ROM with flare-ups or after repetitive use over time. This renders the VA examination inadequate in light of Sharp v. Shulkin, 29 Vet. App. 26 (2017), as the VA examiner failed to ascertain adequate information i.e. frequency, duration, characteristics, severity, or functional loss during flare ups and after repeated user over time by alternative means and then estimate the Veteran's ROM due to flare ups and repeated use based on all evidence of record, including the Veteran's lay information. 29 Vet. App. 26, 36 (2017). Even so, the lay information provided by the Veteran during the examination regarding his symptoms and functional impairments is highly probative as to the severity of his right knee disability. In an August 2012 Integrated Disability Evaluation System Narrative Summary (hereinafter "IDES Narrative Summary"), the Veteran endorsed symptoms including right knee pain, stiffness, weakness, lack of endurance, and fatigability. The Veteran reported difficulty with running, load-bearing equipment, prolonged standing, walking, and sitting, carrying a weapon, getting into firing position, and combative training. On physical examination, the Veteran was shown to have right knee extension to 20 degrees. In VA treatment records dated October 2014, December 2015, December 2016, February 2018, April 2019, and October 2019, the Veteran was noted to have limited right knee ROM. While the December 2019 VA examiner determined that the Veteran was capable of right knee extension to 0 degrees after initial ROM and repeated use over time, the examiner also noted that the Veteran's "right knee pathology prevents normal flexion and extension of the knee joint" and the Veteran was unable to perform repetitive-use testing with at least three repetitions due to too much pain and stiffness. Pain, weakness, and incoordination were found to significantly limit functional ability with repeated use over time. Additional factors contributing to the right knee disability were less movement than normal, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran did not endorse right knee flare-ups. Accordingly, with consideration of the functional loss caused by pain, weakness, fatigability, and incoordination during flare-ups and after repetitive use over time, the evidence demonstrates that, at worst, the Veteran experiences limitation of extension of the right knee to 20 degrees. This level of impairment is consistent with the currently assigned 30 percent disability rating under DC 5261. Moreover, the award of a disability rating greater than 30 percent for limitation of right knee extension would violate the amputation rule. This is because, in light of the increased disability ratings awarded below for right knee limitation of flexion and instability, the Veteran's combined disability rating for his right knee is now 60 percent, which is the maximum schedular rating allowable under the law for a knee disability. See 38 C.F.R. §§ 4.68, 4.71a, DCs 5161, 5162, 5163, 5164. For a rating higher than 60 percent, there must be amputation up to the upper third of the thigh. 38 C.F.R. § 4.71a, DC 5161. Such is not the case in the present appeal. Thus, while a higher percentage rating for the right knee could be assigned in theory, the amputation rule precludes the receipt of compensation greater than 60 percent for a disability of the knee. For these reasons, the appeal seeking an initial disability rating greater than 30 percent for right knee limitation of extension is denied. 2. Entitlement to an initial disability rating greater than 0 percent for right knee limitation of flexion The Veteran is currently in receipt of a 0 percent disability rating for right knee limitation of flexion. He asserts that a higher rating is warranted. On review of the evidence, both lay and medical, the Board finds that the criteria for a 30 percent disability rating under DC 5260 are more nearly approximated. Specifically, the Board finds that throughout the entire period on appeal, the Veteran's right knee disability has been manifested by flexion limited to 15 degrees. As discussed above, in the January 2012 VA examination report, the Veteran reported symptoms including weakness, stiffness, lack of endurance, and fatigability in his right knee. He endorsed flare-ups as often as 1 time per day for 2 hours, rated as 8 out of 10 in severity, precipitated by physical activity, and resulting in an inability to stand for more than 5 minutes, pain when moving or flexing his knee joint, and difficulty with walking and running. When asked about his overall functional impairments due to his right knee, the Veteran stated that he was forced to quit his job in federal law enforcement and take a job paying $20,000.00 less per year. The VA examiner noted an antalgic gait related to right knee pain and indicated that the Veteran constantly used a cane. The Veteran was shown to have right knee flexion to 60 degrees on initial ROM, with consideration of pain. The VA examiner indicated that the Veteran had "marked pain on flexion." Repetitive ROM was found "not possible because unable to bend and support weight due to severe pain." The VA examiner did not estimate the Veteran's right knee ROM with flare-ups or after repetitive use over time. This renders the VA examination inadequate in light of Sharp v. Shulkin, as the VA examiner failed to ascertain adequate information i.e. frequency, duration, characteristics, severity, or functional loss during flare ups and after repeated user over time by alternative means and then estimate the Veteran's ROM due to flare ups and repeated use based on all evidence of record, including the Veteran's lay information. 29 Vet. App. 26, 36 (2017). Even so, the lay information provided by the Veteran during the examination regarding his symptoms and functional impairments is highly probative as to the severity of his right knee disability. In an August 2012 IDES Narrative Summary, the Veteran endorsed symptoms including right knee pain, stiffness, weakness, lack of endurance, and fatigability. The Veteran reported difficulty with running, load-bearing equipment, prolonged standing, walking, and sitting, carrying a weapon, getting into firing position, and combative training. On physical examination, the Veteran was shown to have right knee flexion to 60 degrees. In VA treatment records dated October 2014, December 2015, December 2016, February 2018, April 2019, and October 2019, the Veteran was noted to have limited right knee ROM. While the December 2019 VA examiner determined that the Veteran was capable of right knee flexion to 35 degrees after initial ROM and to 25 degrees after repeated use over time, the examiner also noted that the Veteran's "right knee pathology prevents normal flexion and extension of the knee joint" and the Veteran was unable to perform repetitive-use testing with at least three repetitions due to too much pain and stiffness. Pain, weakness, and incoordination were found to significantly limit functional ability with repeated use over time. Additional factors contributing to the right knee disability were less movement than normal, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran did not endorse right knee flare-ups. Accordingly, with consideration of the functional loss caused by pain, weakness, fatigability, and incoordination during flare-ups and after repetitive use over time, the evidence demonstrates that, at worst, the Veteran experiences limitation of flexion of the right knee to 15 degrees; this level of impairment is consistent with a 30 percent disability rating under DC 5260. A higher rating of 40 percent is available under DC 5256 for ankylosis of the knee in flexion between 10 and 20 degrees. The Board acknowledges that during the December 2019 VA examination and in an August 2012 VA primary care note, the Veteran reported that his right knee sometimes feels "fixed into place" or "held in extension." Nonetheless, the evidence reflects that the Veteran still retains some degree of motion in all ranges, and no medical professional has determined that he has ankylosis of the knee. Thus, a higher rating under DC 5256 is not warranted. Moreover, the award of a disability rating greater than 30 percent for limitation of right knee flexion would violate the amputation rule. This is because, in light of the disability ratings assigned for limitation of extension and instability, the Veteran's combined disability rating for his right knee is now 60 percent, which is the maximum schedular rating allowable under the law for a knee disability. See 38 C.F.R. §§ 4.68, 4.71a, DCs 5161-5164. For a rating higher than 60 percent, there must be amputation up to the upper third of the thigh. 38 C.F.R. § 4.71a, DC 5161. Such is not the case in the present appeal. Thus, while a higher percentage rating for the right knee could be assigned in theory, the amputation rule precludes the receipt of compensation greater than 60 percent for a disability of the knee. For these reasons, an initial disability rating of 30 percent for right knee limitation of flexion is granted. 3. Entitlement to a separate rating for right knee instability The Board finds that a claim for entitlement to a separate compensable rating for right knee instability has been raised by the record and is therefore added to the instant appeal. On review of the evidence, both lay and medical, the Board finds that the criteria for a 10 percent disability rating under the former version of DC 5257 are more nearly approximated. Specifically, the Board finds that the Veteran's right knee disability has also been manifested by slight lateral instability for the entire period on appeal. The Board observes that the joint stability tests conducted during the December 2011 VA examination revealed normal results, and that VA providers found that the Veteran's knees were stable to testing in treatment records dated December 2015, December 2016, February 2018, October 2018, and April 2019. However, in English v. Wilkie, 30 Vet. App. 347, 349 (2018), the Court held that DC 5257 does not require medical evidence of lateral instability for a rating to be assigned. Instead, the Board must address any relevant lay evidence and compare it to the medical evidence to determine which was more probative, keeping in mind that objective medical evidence was not automatically more probative than lay evidence. In this matter, while there is medical evidence of normal joint stability testing, the Veteran competently and credibly reported symptoms of right knee buckling, giving way, and instability in VA examination reports dated January 2012 and December 2019, VA treatment records dated October 2018 and April 2019, and an August 2012 IDES Narrative Summary. Additionally, the Veteran reported using a knee brace and cane, and during the December 2019 VA examination, the Veteran stated that he has fallen repeatedly over the last couple of years despite his use of a cane. The Board assigns great probative value to the Veteran's lay descriptions of such observable symptomatology. Furthermore, the December 2019 VA examiner noted that the Veteran had a history of moderate lateral instability in the right knee. The VA examiner also determined that joint stability testing was not able to be performed, writing, "Although the veteran has a history of PCL and LCL tears of the right knee which were surgically repaired, due to his right knee, it would be medically inappropriate to perform this testing; the claimant preferred I not do this as it would likely cause him severe pain to do so. I concur with the decision to forego this testing due to his fusion." Based on the foregoing, the Board finds that a separate disability rating of 10 percent for right knee instability is warranted under the former version of DC 5257. However, the award of a disability rating greater than 10 percent for right knee instability would violate the amputation rule. This is because, in light of the disability ratings assigned for limitation of extension and flexion, the Veteran's combined disability rating for his right knee is now 60 percent, which is the maximum schedular rating allowable under the law for a knee disability. See 38 C.F.R. §§ 4.68, 4.71a, DCs 5161, 5162, 5163, 5164. For a rating higher than 60 percent, there must be amputation up to the upper third of the thigh. 38 C.F.R. § 4.71a, DC 5161. Such is not the case in the present appeal. Thus, while a higher percentage rating for the right knee could be assigned in theory, the amputation rule precludes the receipt of compensation greater than 60 percent for a disability of the knee. For these reasons, an initial disability rating of 10 percent for right knee instability is granted under the former rating criteria. TDIU Claims A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a)(1). Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58 (2019). 4. Entitlement to a TDIU prior to July 27, 2005 In this matter, VA received the Veteran's TDIU claim application on July 27, 2005. In lay statements dated January 2006 and August 2007, the Veteran asserts that he is entitled to a TDIU for the period from 2000 to 2005, during which time he contends he was unemployable due to a psychiatric disability caused by the receipt of duplicate anthrax vaccinations. On review, the Board finds that entitlement to a TDIU prior to the July 2005 claim application must be denied. Prior to July 2005, the Veteran was only service connected for lumbar strain (rated as 10 percent disabling from October 24, 1998), left knee patellofemoral pain syndrome (rated as 0 percent disabling from October 24, 1998), rhinitis (rated as 0 percent disabling from October 24, 1998), and right periorbital area scar (rated as 0 percent disabling from October 24, 1998). There is no evidence, either lay or medical, that described an increase in symptomatology of these disabilities during the year prior to July 2005, or upon which any increase in disability sufficient to merit a TDIU was factually ascertainable. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Indeed, the Veteran only contends that his unemployability from 2000 to 2005 was due to a psychiatric disability, for which he was denied service connection in the Board's March 2012 decision. Thus, entitlement to a TDIU prior to July 27, 2005 must be denied. The issue of entitlement to a TDIU for the appellate period from July 27, 2005 to October 10, 2011 will be addressed in the Remand section below. 5. Entitlement to a TDIU beginning October 11, 2011 The Veteran is service connected for right knee limitation of extension (rated as 30 percent disabling from October 11, 2011), right knee limitation of flexion (rated as 30 percent disabling from October 11, 2011), right knee instability (rated as 10 percent disabling from October 11, 2011), lumbar strain (rated as 10 percent disabling from October 24, 1998), left knee patellofemoral pain syndrome (rated as 0 percent disabling from October 24, 1998 and 10 percent disabling from October 11, 2011), tinnitus (rated as 10 percent disabling from October 11, 2011), rhinitis (rated as 0 percent disabling from October 24, 1998), right periorbital area scar (rated as 0 percent disabling from October 24, 1998), and linear scars of the right knee (rated as 0 percent disabling from October 11, 2011). Thus, the Veteran had a combined disability rating of 10 percent from October 24, 1998 which was increased to a combined disability rating of 70 percent from October 11, 2011. For the period on appeal beginning October 11, 2011, the Veteran meets the schedular threshold for a TDIU. His multiple orthopedic disabilities (affecting both knees and the lumbar spine) result in a combined rating of 70 percent and are considered "one disability" under 38 C.F.R. § 4.16(a). Thus, the remaining question is whether the Veteran's service-connected disabilities have precluded him from securing and following a substantially gainful occupation during the appellate period beginning October 11, 2011. Turning to the evidence, in the January 2012 VA examination report, when the Veteran was asked about his overall functional impairments due to his right knee, he stated that he was forced to quit his job in federal law enforcement and take a job paying $20,000.00 less per year. He reported that he was currently employed in an administrative job. The VA examiner opined that the effect of the Veteran's right knee disability on his usual occupation was limitation in running, climbing steps, bending, and heavy lifting. In a June 2012 VA general medical examination report, the Veteran reported that he had a bachelor's degree in applied arts and sciences. He stated that he worked as an investigator for the Department of Labor between 2006 and March 2011, but that "he could no longer pass the physical therefore has not worked since 2011." In a June 2012 VA knee examination report, the VA examiner opined that the Veteran's left knee disability impacted his ability to work, writing that the Veteran "would be limited in those occupational requirements that include frequent or prolonged periods of walking, lifting or carrying heavy items, ascending and descending stairs or ramps, kneeling or squatting. There would need to be frequent rest breaks to avoid prologned (sic) standing or walking. His work place sedentary environment may need modifications to allow him to alternate extending his knees rather than sitting with the knees flexed." In VA primary care secure messaging dated October 2019, the Veteran wrote, in pertinent part, "I found out today that my job is temporally moving me out of the state for 3-6 months effective 11 Oct 19..." In a December 2019 VA knee examination report, the VA examiner opined that the Veteran's knee conditions impacted his ability to perform any type of occupational task, reporting, "The veteran uses a cane to get around at all times. He cannot bend, stoop or squat. he cannot climb stairs, run, jump or do any impact activities. He cannot stand or walk for any length of time before needing to sit down." The VA examiner further wrote, "In regard[] to specific functional limitations, the veteran would be able to do an occupation or job in which he could sit at least 90% of the time, and be allowed to stand and stretch as often as needed to prevent muscle and joint pain and stiffness. He is unable to perform any occupation or activity involving running, fast walking, climbing stairs or ladders, bending, stooping, squatting. He cannot lift greater than 20 pounds. He cannot stand or walk for greater than 20 minutes before needing to be allowed to sit and rest." In a December 2019 VA back examination report, the VA examiner opined that the Veteran's thoracolumbar spine disability impacted his ability to work, writing, "The veteran has nearly no functional range of motion of the lumbar back. This as well as his unsteady balance and gait for which he must use a cane, he is unable to sit, stand or walk for any notable length of time. He cannot bend over to pick up objects on the floor, he can no longer run or do impact activities." The VA examiner further wrote, "The veteran has a notably unsteady gait for which he must use a cane at all times to get around. He also has nearly no functional range of motion of his back which would prohibit any occupation or activity where he must bend, squat or stoop. In regard to functional limitations, he would be capable of doing activity which allows him to sit 90% of the time; and would need to be afforded opportunity to stand and stretch as often as needed. He cannot do any activity involving climbing, running, or jumping. He cannot stand or walk for greater than 20 minutes at a time before being allowed to sit for a reasonable period of time. He cannot lift any objects greater than 20 pounds. The functional limitations are not only a result of this veteran's claimed lower back condition, but also his knee condition; see knee DBQ." In a December 2019 VA scars examination report, the VA examiner opined that the Veteran's scars did not impact his ability to work. The VA examiner wrote, "In regard[] to functional impact due to the condition of right periorbital scar, the veteran does not report any functional limitation due to this condition per my interview with him, the scar does not prevent or prohibit any activities or functions. Therefore, there is no functional impact or limitations due to the condition of right periorbital scar. In regard to functional impact due to the condition of scars of the right knee, the veteran does not report any functional limitation due to this condition per my interview with him, the scars do not prevent or prohibit any activities or functions. Therefore, there is no functional impact or limitations due to the condition of scars of the right knee." In a December 2019 VA audiology examination report, the VA examiner opined that the Veteran's tinnitus impacted the ordinary conditions of daily life, including the ability to work, indicating that tinnitus makes it difficult for the Veteran to fall asleep and affects his hearing. In a December 2019 VA sinusitis and rhinitis examination report, the VA examiner opined that the Veteran's non-allergic rhinitis did not impact his ability to work. The VA examiner wrote, "In regard[] to the veteran's sinus condition of recurrent rhinitis; there is no notable impact on his functional limitations per my interview with him. He does not report any inability to do normal activities as a result of this condition. Therefore, no functional impact due to recurrent rhinitis is noted." In VA primary care secure messaging dated March 2020, the Veteran wrote that he was an Air Force civilian employee. After careful consideration of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for a TDIU for the appellate period beginning October 11, 2011. Specifically considering the economic component of a substantially gainful occupation, the weight of the available evidence indicates that the Veteran has maintained substantially gainful employment since October 11, 2011. The Board acknowledges that the Veteran reported he had not worked since 2011 in the June 2012 VA general medical examination report. However, this is inconsistent with his statement in the January 2012 VA examination report that he was currently employed in an administrative job. It is also inconsistent with the June 2012 VA knee examiner's reference to the Veteran's "work place sedentary environment." Therefore, the Board questions the accuracy of the Veteran's report of not working since 2011, and it affords little probative value to that statement. Furthermore, the Board acknowledges the Veteran's statement in the January 2012 VA examination report that he was forced to quit his job in federal law enforcement and take a job paying $20,000.00 less per year. As discussed in its February 2019 decision, the RO has, on multiple occasions, requested further information from the Veteran regarding his employment and earning history, but the Veteran has not responded to such requests. Thus, the Board must adjudicate the appeal based on the evidence of record. Without additional information as to the Veteran's current employment and earning history to include income from his federal law enforcement job, the Board cannot find that the Veteran's current employment is marginal employment, or in a protected environment. The Veteran also refers to his job and indicates he is an Air Force civilian employee in VA primary care secure messages dated October 2019 and March 2020. There is no evidence that this employment is marginal or in a protected environment. Having found that the Veteran does not meet the economic component of being unable to secure and follow a substantially gainful occupation, the Board need not address the non-economic component, as both are required for the award of a TDIU. For these reasons, the Board finds that the criteria for entitlement to a TDIU beginning October 11, 2011 are not met. REASONS FOR REMAND 6. Entitlement to a TDIU between July 27, 2005 and October 10, 2011 is remanded. The Veteran does not meet the schedular criteria for a TDIU for the appellate period from July 27, 2005 to October 10, 2011 as he only has a combined disability rating of 10 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Veterans who fail to meet the schedular criteria for a TDIU rating shall be considered for such a rating on an extra-schedular basis. See 38 C.F.R. § 4.16(b). The Board may not award a TDIU on an extraschedular basis in the first instance. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Rather, the Board must determine if the evidence warrants referral to the Director of Compensation and Pension Service for consideration of an extraschedular TDIU. A referral decision under 38 C.F.R. § 4.16(b) is based on a lower evidentiary threshold than that required for a grant of an extraschedular TDIU. See Ray, 31 Vet. App. at 62. Here, the Board finds that the available evidence raises a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities during the appellate period between July 27, 2005 and October 10, 2011. During an October 2008 VA "Mental Disorders" examination report, the Veteran stated he had intermittently been working in construction and doing "odd jobs" and that his last permanent employment was approximately a year prior. The Board also notes that in the remand directives of its March 2012 decision, it provided that if "there are any periods since July 2005 when the Veteran was unemployed and did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), the AOJ should refer the case to VA's Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) during those periods. Based on the foregoing, the Board finds that referral for extraschedular consideration is warranted. Accordingly, the matter is REMANDED for the following action: Refer the claim for a TDIU for the appellate period between July 27, 2005 and October 10, 2011 to the Director of Compensation Service for consideration of an extraschedular TDIU, and then readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans' Appeals VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.