Citation Nr: 21030305 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 09-06 105 DATE: May 18, 2021 ORDER A rating in excess of 20 percent for residuals of a meniscal tear in the left knee is denied. A separate 10 percent rating, but no higher, for left knee chondromalacia and degenerative joint disease (DJD) with limitation of motion, is granted. For the appeal period prior to September 28, 2020, a 20 percent rating, but no higher, for left knee instability is granted. For the appeal period beginning September 28, 2020, a rating in excess of 20 percent for left knee instability, is denied. A total disability rating based on unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran is already in receipt of a maximum 20 percent rating under Diagnostic Code 5258 for a meniscal condition with frequent episodes of locking, pain, and effusion into the joint. 2. The Veteran's left knee DJD disability has been manifested by slight decrease in extension, with flexion, at worst, to 90 degrees. 3. For the entire period on appeal, the Veteran's left knee has been manifested by, no more than, moderate instability. 4. For the entire appeal period, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010-5260. 2. The criteria for a separate rating of 10 percent, but no higher, for left knee DJD with painful limitation of motion are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a , Diagnostic Codes 5003, 5010, 5260. 3. For the appeal period prior to September 28, 2020, the criteria for a 20 percent rating, but no higher, for left knee instability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. For the appeal period beginning September 28, 2020, the criteria for a rating in excess of 20 percent for left knee instability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 5. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to February 1971 and August 1984 to September 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office dated May 2008 and February 2021. In the February 2009 substantive appeal the Veteran requested a Board hearing before a Veterans Law Judge. However, in a May 2009 Correspondence, he withdrew his request. In December 2012 and July 2015, the Board remanded the increased rating claim on appeal for additional development and, in April 2017, denied entitlement to an increased initial rating in excess of 10 percent disabling prior to August 19, 2015, and 20 percent thereafter, for his left knee disability. The Veteran appealed such denial to the United States Court of Appeals for Veterans Claims (Court), which, in August 2018, issued a Joint Motion for Partial Remand (JMPR), vacating and remanding the matter to the Board for further consideration. In March 2019, the Board remanded the claims on appeal for additional development. While on remand, a February 2021 rating decision awarded an increased rating of 20 percent for the Veteran's left knee disability as of May 29, 2007, the date of service connection. However, as the Veteran is presumed to seek the maximum available benefit for a disability, and higher ratings for such disability remain available on appeal, such claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The case now returns for further appellate review. Disability RatingsLaws and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155 ; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2018). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (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) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2018). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 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. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Left Knee Disability The appeal period before the Board for the begins on May 29, 2007, the date of service connection for the Veteran's left knee disability. The Veteran contends he is entitled to a higher rating for his service-connected left knee disability as such is more severe than as reflected by the currently assigned rating. Specifically, he alleges that such disability limits his ability to walk, stand, or sit for prolonged periods of time due to pain, and, as such, a higher evaluation is warranted. The Veteran's left knee disability has been awarded a 20 percent rating for instability of the knee joint beginning September 28, 2020. The Veteran's left knee disability has also been assigned a 20 percent rating for residuals of a meniscal tear under DC 5258. The relevant rating criteria include Diagnostic Code 5010, which instructs the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the elbow is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As it pertains to recurrent subluxation or instability of the knee, the Board observes that the schedular criteria for evaluating disabilities of the knee have undergone revision during the pendency of this appeal. Specifically, an amendment to Diagnostic Code 5257 was made effective February 7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Because these changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's service-connected right knee disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110 (g). Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides 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. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. 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 and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides 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 one of the following: A brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 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). See DC 5257 (Effective February 7, 2021). Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). VA's General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Turning to the evidence of record, during a December 2008 VA examination, the Veteran endorsed pain, which was variable and activity-related, as well as locking, instability, swelling and flare-ups. On physical examination, range of motion (ROM) testing revealed full flexion and extension of the left knee. Range of motion was characterized by end-of-range pain but was not additionally limited following repetitive use. The knee was stable to the Lachman test, drawer test and varus/valgus stress testing. The knee was nontender, and a moderate to severe degree of crepitus was noted. The McMurray test was positive for a click, but no pain was noted. January 2005 x-rays reviewed during the examination revealed mild DJD accompanied by a calcified anterior intraarticular loose body. The Veteran underwent another VA examination in March 2013, at which time he reported flare-ups with use and cold weather, and occasional sensations of the knee giving way. Further, the Veteran reported occasionally using a cane. Initial ROM testing for the left knee revealed flexion to 140 degrees or greater, at which point objective evidence of painful motion began as well. There was no limitation of extension or pain with extension. Range of motion was unchanged after repetitive use testing. Functional loss was noted to be due to more movement than normal, pain on movement, swelling and disturbance of locomotion. There was pain on palpation. Muscle strength testing was 5/5 on flexion and extension. Joint instability was absent. There was no evidence of recurrent patellar subluxation/dislocation, and no history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner noted there was no history of a meniscus condition. However, May 2007 private left knee magnetic resonance imaging (MRI) results revealed a complex tear of the anterior horn of the lateral meniscus, and possible small free edge tear of the horn of the medial meniscus. In August 2015, the Veteran again underwent VA examination. At such time, he was diagnosed with a meniscal tear, patellofemoral pain syndrome, and degenerative arthritis. The Board notes the examiner indicated such diagnoses were for the right knee and referred to the right knee in discussing the Veteran's pertinent medical history; however, it appears the examiner was actually referring the left knee. The Veteran reported that he had tried using a knee brace but that had caused significant swelling afterward. He stated he uses a cane daily and had recently ordered a transport chair due to difficulty ambulating long distances. He added that he wears boots for support. The Veteran further stated he has difficulty bending down and that flare-ups occur when he has to do a lot of bending or squatting; he gave up gardening as a result. He denied functional loss, including as due to repeated use over time. Range of motion testing revealed flexion to 130 degrees, and extension to 5 degrees. The examiner determined that pain and decreased ROM did not result in functional loss. Pain with weight bearing was present. There was also tenderness and the feeling of cartilage moving along the left lateral knee, as well as tenderness beneath the patella and crepitus. Repetitive use testing resulted in functional loss due to pain, and flexion to 120 degrees and extension to 5 degrees. However, pain, weakness, fatigability or incoordination were not found to significantly limit functional ability with repeated use over time or flare-ups. Muscle strength testing was 4/5 on flexion and extension, but muscle atrophy was absent. There was no evidence of ankyloses, recurrent subluxation or lateral instability. Recurrent effusion was reported. Joint instability was absent upon testing. There was no history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. Meniscal dislocation, with frequent episodes of joint pain and effusion, was noted. Contemporaneous VA treatment records reflect numerous reports of left knee pain. See February and August 2014, February 2015, April 2019, and July 2019 records. Private treatment records reflect the Veteran complained of difficulty walking due to his left knee injury but had no leg numbness or weakness. See June 2015 Dr. J.W. records. At a July 2019 VA orthopedic consultation, physical examination revealed the Veteran to have extension/flexion of 0 to 120 degrees, and his patellofemoral area was nontender to palpation anterior and negative tenderness to the meniscal grind. August 2018 and January 2019 private treatment records reflect the Veteran had flexion to 115 degrees and extension to 5 degrees with pain on active and passive ROM. All laxity tests were negative, and the Veteran had normal left knee strength. In August 2019 the Veteran reported the pain was aching, dull, and sharp, and physical examination revealed flexion to 115 degrees and extension to 5 degrees with pain on active and passive ROM. See Dr. M.L. records. As noted supra, in the August 2018 JMPR, the parties agreed the Board erred in relying on inadequate examination reports from December 2008, March 2013, and August 2015. In this regard, none of these examiners performed testing in the active, passive, weight-bearing, and nonweight-bearing modes. Further, the Board provided an inadequate statement of reasons and bases for denying a higher rating for the period prior to August 2015 when the Board found a separate rating under DC 5258 was not available, because the 10 percent rating under DC 5260 adequately captured the full extent of the disability. However, the Board did not address the question of whether a 20 percent rating was available under DC 5258, and further erred by failing to address potentially favorable evidence in evaluating whether referral for extraschedular consideration is warranted as the Board addressed the symptoms of pain and limitation of motion, but not giving way or crepitus. In this regard, the Board notes that subsequent to the February 2021 rating decision, the Veteran is currently in receipt of a 20 percent evaluation pursuant to DC 5258 for the entire appeal period and has been assigned a separate rating for lateral instability pursuant to DC 5257. Pursuant to the August 2018 JMPR, the Veteran underwent VA examination in December 2019, at which point the Veteran continued to endorse daily left knee pain, rated at a 2-3/10. He reported using a knee brace during walking activities, or "depending what he's up to." Additionally, he reported occasionally using a cane or a rollator (walker with a seat). Initial ROM testing revealed left knee flexion to 120 degrees and extension to 5 degrees. The Veteran was not examined after repetitive use or during a flare-up, and the examiner noted the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. However, the Veteran reported pain but no loss of ROM after repetitive use or a flare-up. Muscle strength testing was normal, with no muscle atrophy, and the examiner indicated joint stability testing was not indicated. The Veteran had tenderness to palpation on the medial and lateral joint line. The Veteran's meniscal tear was noted, with frequent episodes of joint "locking" and joint pain. Ankylosis was noted in a favorable angle in full extension or in slight flexion between 0 and 10 degrees. In a December 23, 2019 correspondence, the Veteran alleged his December 2019 VA examination was inadequate. Therefore, he was afforded another VA examination in September 2020. At that time, the Veteran reported daily left knee flare-ups, precipitated by activities, that were moderate and would last a few hours. Such flare-ups were relieved by rest and pain medications. The Veteran reported flare-ups interfered with climbing, squatting, kneeling, standing, or walking for longer than 30 minutes. He reported wearing a brace and using a cane constantly, and the occasional use of a walker. Initial ROM testing revealed flexion to 90 degrees with full extension with pain that did not result in functional loss or additional loss in movement on repeat testing or during flare-ups; however, the examiner also found the examination was consistent with the Veteran's statements describing functional loss over time and during flares. The examiner also noted objective evidence of tenderness to palpation, pain on weight bearing, crepitus, and a history of recurrent effusion. Muscle strength testing of the left knee was 4/5, but no muscle atrophy. There was no history of recurrent subluxation, but joint stability testing noted medial and lateral instability at 2+. No ankylosis was present. No meniscal conditions were found to be present, however, as noted previously, this would be in error. Analysis Upon review of the evidence of record, the Board finds that a rating in excess of 20 percent for residuals of a torn left knee meniscus under DC 5258 is not warranted for the entire rating period on appeal. The evidence of record shows that the Veteran has symptoms equivalent to frequent episodes of locking, pain, and effusion in the left knee joint as contemplated by the currently assigned 20 percent rating pursuant to Diagnostic Code 5258. The Veteran is already in receipt of the maximum allowable rating under DC 5258 and therefore a rating higher than 20 percent is not warranted. Next, the Board finds that a separate 10 percent rating is warranted for the entire appeal period for left knee DJD with limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. The medical evidence of record clearly demonstrates that the Veteran has degenerative joint disease in the left knee. Moreover, the August 2015, December 2019, and September 2020 VA examiners indicated that the Veteran displayed limitation of flexion of the left knee to, at worst, 90 degrees, and extension, at worst, limited to 5 degrees. There was also pain on weight-bearing and the Veteran has reported pain with prolonged walking and sitting. See September 2020 VA examination. In light of the fact that the Veteran has a diagnosis of left knee DJD, with limitation of flexion and extension to a noncompensable degree under the relevant Diagnostic Codes, the Board finds that a 10 percent rating is warranted for arthritis of the left knee with limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010 for the entire appeal period. That notwithstanding, the Veteran's limitation of motion in the left knee has not demonstrated limitation of flexion or extension to warrant higher separate ratings in excess of 10 percent. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. The Veteran's pain is being considered in the 10 percent rating assigned herein. Further, even with consideration of the Veteran's flare-ups and repeated use over time, flexion was limited to, at worst, 90 degrees, and extension was limited to, at worst, 5 degrees. Thus, without clinical medical evidence indicating additional functional limitation, the Board is unable to find that the Veteran's pain is so disabling as to actually or effectively limit flexion or extension of the left knee to such an extent as to warrant assignment of a higher rating. Accordingly, the Board finds that higher ratings under Diagnostic Codes 5260 and 5261 are not warranted. As it pertains to left knee instability, the Board notes that the Veteran has been awarded a 20 percent rating for instability of the knee joint beginning September 28, 2020. Upon review of the evidence of record, the Board finds that a 20 percent rating for left knee instability is warranted for the appeal period prior to September 28, 2020. A rating in excess of 20 percent for left knee instability is not warranted for the entire period on appeal. The Board notes that Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). The Veteran has competently and credibly reported left knee instability throughout the entire rating period on appeal. See e. g., February 2014 VA treatment note (Veteran indicated that he had difficulty ambulating and left knee instability); see April 2014 VA treatment record (where the Veteran reported that his knee "gives way"); see August 2015 VA examination report (noting that the Veteran had tried to wear knee brace, but had significant swelling); see also December 2019 VA examination (Veteran reported wearing knee brace during walking activities and examiner noted that the Veteran used a brace, cane, and roller occasionally); see also September 2020 VA examination report (specifically diagnosis the Veteran with knee instability). Based on the evidence, the Board finds that, affording the Veteran the benefit of the doubt, his left knee instability warrants a separate 20 percent rating for the rating period prior to September 28, 2020. The Board further finds that a rating in excess of 20 percent for left knee instability is not warranted for the entire rating period on appeal. During the September 2020 VA examination, the Veteran was found to have 5-10 millimeters of lateral and medical instability. The Board find that this level of instability is appropriately considered in the Veteran's currently assigned 20 percent rating. Moreover, and as noted above, effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. The evidence does not show that the Veteran has an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. He also does not have a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. As such, a rating in excess of 20 percent for left knee instability is not warranted under the new rating criteria for DC 5257. The Board next finds that higher or separate ratings are not warranted under DC 5256. While the December 2019 VA examination noted ankylosis in a favorable angle in full extension or in slight flexion between 0 and 10 degrees, this appears to be an outlier, as the other VA examinations make no such findings. Thus, the Board a separate rating under DC 5256 is not warranted. The Board has also considered whether the Veteran is entitled to higher or separate ratings for his bilateral knee disabilities at any point during the appeal period pursuant to DCs 5259, 5262, and 5263. However, as there is no evidence of removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum at any point during the appeal period, such ratings are not warranted. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before." In other words, a "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the U.S. Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include 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. As noted in the March 2019 Board decision, the appeal period in the instant matter stems from the Veteran's February 2008 claim for an increased ratings for his left knee and hiatal hernia and peptic ulcer disabilities. As the Veteran's left knee disability, left knee instability, and residuals, laceration left knee are of a common etiology, they are considered as one disability for TDIU purposes. 38 C.F.R. § 4.16 (a). Consequently, and pursuant to the Board's decision herein, the Veteran meets the schedular threshold for consideration of a TDIU. In this regard, the Veteran's November 2020 Application for Increased Compensation Based on Unemployability (VA Form 21-8940) reflects that he last worked as a service technician for Medi-Home Care from 2008 to 2011, but the Veteran did not report earnings from such position. He stated he retired early in December 2008 and worked part time with Medi-Home Care before retiring fully at age 65 in 2011 as the medical equipment became too heavy for him to bear. VA treatment records dated January 2011 reflect that after military service he worked in construction, hotel management, for U-Haul, served as a pastor, and did mission work and fundraising. Additionally, he reported doing volunteer work via the internet, telephone, mail, and runs a correspondence Bible school. While he reported on his VA Form 21-8940 that he became too disabled to work as of January 1, 2011, the VA treatment records dated December 2012 reflect the Veteran was involved in prison ministry and served as a volunteer prison chaplain. Further, his representative's May 2015 Written Brief Presentation reflects the Veteran worked as a congregational pastor in a church, and his duties were described as giving sermons and counseling people. Turning to his education, on his VA Form 21-8940, the Veteran reported that he had a college degree and had received his doctorate of ministry in 1990. Further, he reported he had received a doctorate in education and a doctorate in theology in 2017 and 2018 respectively. With respect to the functional impairment associated with the Veteran's service-connected disabilities, in a May 2017 letter, the Veteran reported that he cannot stand or sit at a desk for any length of time, and has to be able to stretch out the left leg and at times elevate it to reduce swelling and pain. Further, in a January 2021 letter, the Veteran reported that when his left knee is in real pain, he must use a knee brace as well as a cane or walker. He has to take turns between walking, sitting, and reclining with his feet up to reduce swelling, and he cannot do any one thing for more than 45 minutes at a time. In March 2008, the Veteran underwent VA examination for his left knee laceration scar, which was noted to cause no induration, inflexibility, limitation of motion, or function. In December 2008, he underwent VA examination for his left knee disability. At such time he reported that, in his work activities, he experiences climbing into and out of his vehicle, and as discussed supra, the knee locks on him, feels unstable, and swells at the end of the workday. In March 2013, the Veteran underwent VA examinations for his residuals of pilonidal cyst, hiatal hernia and peptic ulcer disease, and his left knee disability. In regard to the latter two service-connected disabilities, the examiner stated neither would impact the Veteran's ability to work. Specific to the Veteran's left knee disability, the examiner noted it would affect the Veteran's ability to work as the knee begins to hurt after he is on his feet. The examiner also noted the Veteran reported being retired. In August 2015, the Veteran underwent VA examinations for his hiatal hernia and peptic ulcer disease and left knee disability. While the VA examiner opined the Veteran's stomach disability did not impact his ability to work, the VA examiner stated the Veteran's left knee disability impacted his ability to work as he had problems standing for long periods. At an April 2016 VA examination for his laryngitis disability, the VA examiner stated such had no functional impact on the Veteran's ability to work. At his December 2019 left knee VA examination, the Veteran reported walking up to 2 miles a day a couple of months previous, but had gotten sick and was working up to such a distance again, Currently he was walking a mile each day if he felt up to it. The VA examiner stated that the Veteran's left knee disability impacted his ability to work in that he could not bend or kneel and could only walk up to one mile. At his September 2020 VA knee examination, the VA examiner stated the Veteran's left knee disability interferes with, climbing, squatting, kneeling, standing, or walking for longer than 30 minutes. Based on the foregoing, the Board finds the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, the functional impairment associated with the Veteran's left knee disabilities include limitations in regard to difficulty with prolonged standing, walking, sitting, bending, and kneeling. Furthermore, the evidence shows that the Veteran needs to alternate sitting and standing every 45 minutes. The Board notes the Veteran's other service-connected disabilities have no functional impact on his ability to work. However, while the Veteran has stated he became too disabled to work in 2011, he has continued to do volunteer work and was able to complete two degrees in 2017 and 2018, an endeavor that would require some amount of prolonged sitting, and some walking if such degrees were obtained in an on campus setting. Further, during the appeal period, the Veteran is noted to have worked as a pastor, to include delivering sermons, which are generally done standing at a pulpit, and to do counseling work, which involves prolonged sitting. In this regard, the Board finds that the Veteran's limitations in prolonged sitting or standing would not interfere with the Veteran's ability to successfully secure and follow a substantially gainful occupation consistent with his degrees in ministry, education, and theology, and work history as a pastor, fundraising, or running a correspondence Bible school. In this regard, the Board finds that the Veteran is capable of performing the physical and mental acts necessary for the successful performance of such type of position as such do not require physically intensive activities and are generally performed while sitting or standing at a desk. In this regard, such would allow the Veteran to alternate between sitting and standing, and would not require that he remained seated for more than 45 minutes at a time. Consequently, based on the foregoing, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with her education and work history. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and a TDIU, and referral for consideration of a TDIU prior to September 28, 2020 on an extra-schedular basis is not warranted. Thus, the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.