Citation Nr: 21031810 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 12-30 727 DATE: May 24, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee medial meniscectomy with post traumatic arthritis is denied. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's left knee medial meniscectomy residuals has been manifested by painful motion; flexion limited to, at worst, 100 degrees; and extension limited to 5 degrees even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups; without recurrent subluxation, effusion, ankylosis, impairment of the tibia and fibula, or genu recurvatum; and without instability prior to August 13, 2019. 2. The preponderance of the evidence does not show that the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment due to service-connected disability at any time during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee medial meniscectomy residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5256-5263. 2. The criteria for entitlement to 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 March 1979 to September 1985. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) St. Petersburg, Florida. Jurisdiction of this appeal is currently with the RO in Columbia, South Carolina. This case was most recently before the Board in April 2018, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. Initially, the Board notes that a separate rating for the left knee based on instability has already been awarded beginning August 13, 2019, and is currently not on appeal. See Rating Decision, March 4, 2020. Additionally, the Board notes that a separate rating for left knee surgical scars was awarded beginning May 8, 1992, and is currently not on appeal. See Rating Decision, September 4, 2020. Therefore, the Board will not consider increased ratings for the left knee based on instability prior to August 13, 2019, nor for left knee scars. However, as discussed below, the Board finds that a separate rating for the left knee based on instability prior to August 13, 2019 is not warranted. The issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Specifically, the evidence reflects the Veteran is not working; and the April 2018 prior Board remand referred the issue of an entitlement to a TDIU to the AOJ. The Veteran submitted a VA Form 21-8940 in support of his claim, and the AOJ issued a September 2020 Rating Decision and September 2020 Supplemental Statement of the Case. As such, the issue of entitlement to a TDIU is properly before the Board. Increased Rating The Veteran asserts that he is entitled to a higher rating for his service-connected left knee medial meniscectomy residuals because his symptoms are worse than contemplated by the current rating assigned. Specific argument in support of this appeal has not been provided. Disability evaluations 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 his 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. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings 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). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107; 38 C.F.R. § § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service-connected left knee medial meniscectomy residuals is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board notes that the Veteran is already in receipt of a separate 10 percent rating for instability beginning August 13, 2019. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege, that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. The Board also notes that a separate rating for left knee surgical scars has already been awarded and is currently not on appeal; and such, will not be discussed further in this decision. Turning to the medical evidence, the Veteran was afforded a VA examination in November 2012. At that time, the Veteran reported that his left knee had gotten progressively worse. He reported flare-ups of the left knee that occurred two to three times daily, and lasted one to two hours in duration. Precipitating or aggravating factors included cutting the grass and riding the lawn mower. Alleviating factors included sitting in a recliner and oral medication. Effects of flare-ups on limitation of motion or other functional impairment was none. Functional limitations lasted up to thirty minutes, and limitations on walking was up to one quarter mile. The Veteran used a single prong cane as an assistive aid. Current treatments included cone injections, medication, and prior surgeries. Diagnostic imaging studies from December 2010 showed mild cartilage narrowing medial compartment of the left knee. Upon physical examination, range of motion measurements were as follows: flexion was to 100 degrees, with painful motion at 90 degrees; and normal extension, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing, without additional loss of range of motion. The Veteran was shown to have functional loss or functional impairment due to less movement than normal and pain on movement. There was no tenderness or pain to palpation for joint line or soft tissues of the knee. Muscle strength testing was normal. Instability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have or ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran had a meniscus (semilunar cartilage) condition that was manifested with meniscal tear and frequent episodes of joint pain. The Veteran had three prior meniscectomies. Residual signs and/or symptoms due to meniscectomy included limitation of motion. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran endorsed the regular use of a cane and open patella knee sleeve as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Diagnostic imaging studies documented degenerative or traumatic arthritis. The examiner noted the left knee did not impact the Veteran's ability to work. Of record is a September 2015 VA orthopedic surgery note. At that time, the Veteran reported left anterior knee pain and left lower extremity weakness. His knee symptoms were doing reasonably well, though he had findings consistent with left lower extremity weakness, more concerning for lumbar radiculopathy or sciatica. He continued the use of a cane in the right hand. The Veteran indicated that a certain knee brace helped somewhat with swelling; and he reported activity based swelling. Mild patellofemoral joint degenerative changes were shown. The Veteran ambulated with a slight antalgic gait favoring the left lower extremity. He described activity pain in the left knee at a 5 out of 10 severity. Overall, the knee appeared normal. There was decreased sensation over the lateral aspect of the knee down to the lateral aspect of the ankle to light touch and scratch; and there was slightly less sensation noted laterally compared to the lateral of the right leg. There was no increased warmth nor joint effusion. There was tenderness over the articular cartilage of the patellofemoral joint. Mild patellofemoral crepitus was shown. There was no pain in the knee beyond 90 degrees of flexion; active motion was from 0 to 120 degrees; without instability. The Veteran was afforded a VA examination in August 2019. At that time, the examiner diagnosed left knee instability and postoperative left knee medial meniscectomy with post-traumatic arthritis. The Veteran had four prior surgeries on his knee, and was told he needed a total knee replacement. Current symptoms included daily pain that occurred with weight-bearing immediately, and the longest he could walk was 30 minutes. He could not squat. He noted a sense of posterior instability, and took medication and cortisone injections for knee pain. The Veteran denied flare-ups of his left knee. The Veteran reported functional loss or functional impairment that was described as pain with weight-bearing, and inability to squat or use stairs. Upon physical examination, range of motion measurements were as follows: flexion was to 100 degrees; and extension was to 5 degrees. Range of motion itself contributed to a functional loss due to limited squatting. Pain was noted on flexion and extension. There was no objective evidence of localized tenderness or pain on palpation of the joint nor evidence of pain with weight-bearing. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions; and there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive-use over time; and the examination was medically consistent with the Veteran's statements describing a functional loss with repetitive use over time. Pain was noted to significantly limited functional ability with repeated use over a period of time. The examiner was able to describe in terms of range of motion as follows: flexion was to 100 degrees; and extension was to 5 degrees. The examination was not conducted during a flare-up; and the examiner noted the Veteran denied flare-ups. Additional factors contributing to disability included disturbance of locomotion, interference with standing, and increased pain. Muscle strength testing was normal. The Veteran did not have muscle atrophy. No ankylosis was shown. There was no history of subluxation and lateral instability; nor was there a history of recurrent effusion. Joint stability testing was performed, and showed +1 posterior instability. The Veteran did not have or ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. Residual signs or symptoms due to his meniscectomies included pain. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran denied the use of any assistive device as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran's left knee impacted his ability to work due to inability to use stairs or squat; limited walking to half hour at a time or a total of three to four hours a day. There was no objective evidence of pain in nonweight-bearing; passive range of motion was the same as active range of motion; there was no evidence of pain on passive range of motion. Additionally, the examiner noted that there was pain and limited range of motion in both active and passive motion, weight-bearing, and nonweight-bearing; pain and limited range of motion present on examination; mild posterior instability present on examination; and pain with weight-bearing that increased with time on his feet. Of record is a September 2019 lay statement submitted by the Veteran. At that time, the Veteran reported he could no longer work due to his left knee. Additionally, he reported left knee symptoms that included severe pain; use of medication; constant limping; change in gait; surgery; and negative mental health effects. The Veteran stated he spent most of his day in bed, and that he had difficulty with sleep due to pain. He reported he used to work as a pastor from 2000 to 2007, and used to be very social, but that the pain, insomnia, and mental health symptoms prevented continuing such activities. Of record is a July 2020 lay statement submitted by the Veteran's friend, T.B. At that time, T.B. reported the Veteran required assistance with simple daily tasks due to the limitations of his left knee; had knee pain, that progressed; pain that prevented working eight hours a day, resulting in the Veteran no longer working; poor balance; falls; inability to stand longer than 10 minutes; difficulty walking; inability to knee without falling; difficulty lifting more than 15 pounds; swelling on a frequent basis; and many physical limitations such as driving, riding a lawn mower, and most tasks around the house. Of record is a July 2020 lay statement submitted by the Veteran's wife, D.T. At that time, D.T. reported the Veteran's knee resulted in his limping; use of a cane; constant pain; difficulty with prolonged standing or walking; worsening mobility; instability, and three falls in the past 30 days; buckling; swelling daily; requiring elevation and compression socks; and difficulty with daily and household tasks, such as, mowing the lawn. Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities. However, there is no indication from the treatment notes of record that the Veteran has reported left knee symptoms that are worse than those noted above. As noted above, range of motion testing was performed during VA examinations in November 2012, and August 2019; as well as at a September 2015 VA orthopedic surgery note. Range of motion was, at worst, 100 degrees of flexion and five degrees of extension. The reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements. In this regard, the November 2012 VA examiner noted that the Veteran did not experience additional functional loss following repetitive use or flare-ups, and that knee joint function was additionally limited by pain on motion. The Veteran denied flare-ups at his August 2019 VA examination. The Board acknowledges that the November 2012 VA examiner was able to provide an opinion regarding additional functional impairment during flare-ups and following repetition. However, the Board finds that all information required for rating purposes was provided. In this regard, the Board notes that the examiner clearly noted that the Veteran specifically reported pain that limited walking to one quarter mile during a flare-up. There is no other indication from the record, to include the Veteran's own statements, that he experiences additional decreased range of motion, weakness, or incoordination during flare-ups or following repeated use other than shown above. As the Veteran has not endorsed those symptoms, the Board finds the examinations of record to be adequate for rating purposes. See Correia v. McDonald, 28 Vet. App. 158 (2016); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). Based on the foregoing, the Board finds the evidence, to include the Veteran's reported symptoms as considered in the VA examination reports and treatment records, does not demonstrate symptoms that rise to the level as required for a higher rating under the diagnostic criteria. While the Veteran has essentially stated that he has reduced motion in his knees and pain, he has not described a range of motion less than that found on examinations. In this regard, he reported that he experienced symptoms that included chronic pain, and interference with walking, sitting, squatting, and climbing stairs. However, the Veteran's statements do not show the requisite limitation of motion necessary for higher or separate ratings. Treatment records do not show greater limitations of motion than the above examination findings. Specifically, the Veteran was not shown to have range of motion that was limited to 100 degrees of flexion or 5 degrees of extension in the left knee. Given the above, even when considering the impact of left knee pain on physical activities, higher or separate ratings are not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. With respect to Diagnostic Code 5257, the Board finds that rating in excess of 10 percent is not warranted for other impairment of the left knee prior to August 13, 2019. 38 C.F.R. § 4.71a. The Veteran has not alleged that his left knee gave way, and he denied a history of recurrent subluxation and lateral instability at his VA examination in November 2012. There are specific objective tests that are designed to reveal instability and laxity of the joints. These tests were administered by a medical professional during that examination, and the testing revealed no instability or laxity in November 2012. Given the objective testing performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. If subluxation or lateral instability were present to a slight degree, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed or by the Veteran himself during examination. See 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5257. Instead, the examiner stated that there was no history of recurrent subluxation and lateral instability and that joint testing revealed no instability. Hence, the most probative evidence is against a separate compensable rating for the left knee under Diagnostic Code 5257 prior to August 13, 2019. 38 C.F.R. § 4.71a. The Board has considered the applicability of other potential diagnostic codes. As the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under 5256, 5262, or 5263, respectively, for his left knee medial meniscectomy residuals. As noted above, the Veteran is already in receipt of a separate rating for left knee instability beginning August 13, 2019 under diagnostic code 5257; and for surgical scar residuals under diagnostic code 7805. The Board acknowledges the Veteran's statements that his left knee medial meniscectomy residuals is more severe than evaluated as due to symptoms of pain, limited range of motion, and instability; and the difficulty with everyday activities, to include walking, standing, and sitting prolonged periods. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, supra. The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for a rating in excess of 10 percent have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his left knee. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board has considered whether a staged rating under Hart, supra, is warranted, however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 10 percent for left knee medial meniscectomy residuals. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Entitlement to a TDIU The Veteran asserts he is entitled to a TDIU. Specifically, the Veteran and his attorney contend that he is unemployable as a result of his service-connected left knee and adjustment disorder. See VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, January 20, 2021, dated September 25, 2019; see also Third Party Correspondence, January 19, 2021. However, the Board finds that entitlement to a TDIU is not warranted. 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). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). 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). In the instant case, the Veteran is service-connected for adjustment disorder, chronic with depression and anxiety associated with postoperative left knee medial meniscectomy with post traumatic arthritis, rated as 70 percent disabling from September 19, 2012; left knee medial meniscectomy with post traumatic arthritis, rated as 10 percent disabling from May 8, 1992; instability of the left knee, rated as 10 percent disabling from August 13, 2019; left knee scars, rated as noncompensable from May 8, 1992. The Veteran's combined rating is 10 percent prior to September 19, 2012; 70 percent from September 19, 2012 to August 13, 2019; and 80 percent thereafter. Thus, the schedular criteria for a TDIU have been met throughout the period on appeal Here, the evidence is against finding that the Veteran is precluded by his service connected disability from obtaining and maintaining any form of gainful employment consistent with his education, experience, and skillset. The record shows that the highest level of education attained by the Veteran is two years of college. The Veteran reported working in security from April 2007 to July 2009; and a pastor from June 2000 to April 2007. During service, the Veteran's military occupational specialty (MOS) was medical logistic specialist. Thereafter, the record shows that the Veteran last worked in July 2009. The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Turning to the evidence, at November 2012 VA examination for the Veteran's knees, the examiner noted his knees did not impact his ability to work. At a November 2012 VA psychiatric examination, the examiner opined the Veteran's adjustment disorder manifested in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported he worked as a Methodist minister from 2000 to 2005, and on occasion assisted two or three churches at a time. He reported he left the ministry in 2005 when he began to have difficulty standing for extended periods due to neuropathy in his feet; as well as difficulty in concentration. He found a job as a hospital security officer, and reported he lost that job in 2009 due to requiring the use of a cane to ambulate. He had not worked since the hospital security job. Of record is a September 2013 private psychiatric disability benefits questionnaire (DBQ) submitted by Dr. A.F. At that time, Dr. A.F. opined the Veteran's adjustment disorder manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported he was fired for using a cane, and had increasing problems with his depressed mood, anxiety secondary to pain, and limitations on his lifestyle. Dr. A.F. noted the Veteran lost three or more days of work per month due to his psychiatric symptoms; would need to leave early three or more days a month due to psychiatric problems; and would have trouble or concentration, and would be unable to stay focused on simple, repetitive tasks for more than three days per month and would not stay focused at least seven out of eight hours a day. Dr. A.F. noted the Veteran would frequently decompensate when subjected to the normal pressures and constructive criticisms of a job. In September 2009 Social Security Administration (SSA) records, the Veteran reported he had difficulty with caring for personal needs, such as requiring assistance from his wife to put on socks; difficulty with concentration, losing his train of thought and having difficulty staying focused; had trouble finishing tasks and required often breaks; and could not bend or stoop due to pain, and required the use of a cane to help him walk. He stated he could not sit, stand, or walk for prolonged periods. At an August 2019 VA psychiatric examination, the examiner opined the Veteran's adjustment disorder manifested in occupational and social impairment with reduced reliability. The Veteran reported that he quit working and began disability in 2005 due to his knee and hip issues. At an August 2019 VA examination for the Veteran's knees, the examiner noted the Veteran's left knee impacted his ability to work due to limited walking; inability to use stairs; and inability to squat. The Veteran reported he could not walk for more than 30 minutes, could not squat, and had daily pain with weight-bearing. Of record is a September 2019 lay statement submitted by the Veteran. At that time, he reported his left knee prevented him from security or following any substantially gainful occupation. In that regard, he reiterated he stopped working in 2009 due to the use of a cane, pain, and interference with his daily life. Additionally, the Veteran reported that he left his job as a pastor when he felt that he was incapable of holding a complete train of thought. Of record is a July 2020 lay statement submitted by the Veteran's brother, T.B. At that time, T.B. noted the Veteran had left knee pain, and stopped working when he could not tolerate working eight hours a day due to the pain. T.B. stated that the Veteran's memory loss, lack of concentration, and mobility limitations reduced his productivity; and that his mobility was severely impacted by his knee. Additionally, T.B. noted the Veteran's psychiatric symptoms were worsened and/or aggravated by the left knee pain, and further impacted his ability to work. T.B. stated the biggest issues for the Veteran included concentration and memory issues. Of record is a December 2020 private medical opinion submitted by Dr. S.E. At that time, Dr. S.E. opined the Veteran's mental and physical limitations, as well as his past relevant work and educational background, resulted in the Veteran's inability to maintain substantial gainful employment as a result of his adjustment disorder and left knee. Dr. S.E. opined that the Veteran was unemployable beginning September 2012, and that his left knee instability only further limited his ability to work. In that regard, Dr. S.E. noted the Veteran's left knee symptoms, psychiatric symptoms, the VA examination reports of record, and lay statements submitted. Dr. S.E. interviewed the Veteran and noted his physical limitations included pain, inability to walk, requiring the use of a cane for assistance, unable to lift or carry more than ten pounds, and would require or miss work several times a month due to his symptoms. Dr. S.E. also noted the Veteran's psychiatric symptoms that included difficulty concentrating, anxiety, depression, and difficulty focusing. Therefore, Dr. S.E. opined the Veteran's service-connected impairments, mentally and physically, would prevent the Veteran from maintaining substantially gainful employment. Based on the foregoing, the Board finds that the Veteran is not entitled to a TDIU at any time during the period on appeal. The Board has carefully considered the Veteran's statements regarding the effects of his adjustment disorder and left knee on his employability. Although the Veteran experienced some limitations as a result of his service-connected disabilities, and these have been found to cause some impact on his daily functioning and earning capacity, that impact was considered in the scheduler ratings currently assigned. Simply stated, if he did not have impairment with his service connected adjustment disorder and left knee, there would be no basis for the combined rating of 70 percent from September 19, 2012 to August 13, 2019; and 80 percent thereafter. The fact that he was having impairments or difficulties does not provide a basis to grant TDIU. Further, the Veteran himself asserted that he was unemployable as a result of a combination of his service-connected and nonservice-connected disabilities, namely his left knee, foot neuropathy, hips, and adjustment disorder. In this regard, the Board notes that the Veteran is service connected for only his left knee, left knee instability, left knee scars, and adjustment disorder. Therefore, the analysis and considerations for entitlement to a TDIU are limited to the effects of only these four service connected disabilities on his employability. The Veteran reported in a November 2012 VA examination that he left his ministry job due to neuropathy in his feet; and at an August 2019 VA psychiatric examination, he reported he quit working due to his knees and hips. The Board notes the December 2020 private letter from Dr. S.E. indicating the Veteran would be unemployable due to his severe adjustment disorder and left knee symptoms. However, Dr. S.E. did not adequately address the Veteran's own reports that his bilateral feet neuropathy and hips, combined with his service-connected disabilities produced unemployability. The Veteran is not service-connected for any disorders related to his feet or hips. Similarly, the Board notes the September 2013 private psychiatric DBQ submitted by Dr. A.F. demonstrating some impairment on employability due to his adjustment disorder, and notes that Dr. A.F. did not adequately address the Veteran's own reports that his bilateral feet neuropathy and hips, combined with his service-connected disabilities produced unemployability. The Board notes the arguments of the Veteran and his attorney that he is entitled to a TDIU due to his service-connected adjustment disorder and left knee. However, the limitation noted by the medical evidence above shows the Veteran had impairment to his employability from a number of nonservice-connected disabilities, to include neuropathy of the feet and hips, as well as his adjustment disorder and left knee. Additionally, as discussed above, service connection is not in effect at any time for neuropathy of the feet or any disorders of the hips. Moreover, the Veteran's impairments due to his adjustment disorder and left knee are reflected in the ratings assigned. In this regard, the Board finds that the Veteran's adjustment disorder and left knee result in some impairment in occupational functioning, but such do not render him unable to secure or follow a substantially gainful occupation. This argument is therefore without merit. The Board acknowledges that the Veteran was limited in his ability to perform some physical employment; however, there is no indication from the record that the Veteran was precluded from employment solely as a result of his service-connected disabilities. While the fact that nonservice connected disabilities also impacted the Veteran's ability to work does not preclude a finding that the Veteran would have also been unable to work solely as the result of a service-connected disability, that is not the case for this Veteran. It cannot be determined with any certainty that the Veteran would not have been able to successfully continue working if he was only impaired by his service connected adjustment disorder and his left knee alone. Ultimately, the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Here, the evidence is not sufficient to show that the Veteran could not have performed the physical and mental acts required by employment due solely to his service connected disabilities. The Board has considered the combined effects of the disabilities. However, the most probative evidence shows no more than a moderate impact on employability from his adjustment disorder and left knee alone. Consequently, the preponderance of the evidence is against a finding of unemployability and the claim for a TDIU must be denied. The Board acknowledges that the Veteran is competent to report the symptoms of his disabilities. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Board recognizes that the Veteran has stated that he had problems with cognitive difficulties, psychiatric symptoms, and physical limitations. The evidence, however, shows that the Veteran is not unable to obtain and maintain employment due to his service-connected disabilities. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU pursuant to 38 C.F.R. § 4.16 (b) is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.