Citation Nr: 21040029 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-34 590 DATE: July 2, 2021 ORDER A disability rating in excess of 20 percent for right knee osteoarthritis status post lateral meniscectomy is denied. A disability rating in excess of 10 percent for right knee osteoarthritis with instability, rated as limitation of flexion, is denied. Referral for consideration of a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis is denied. FINDINGS OF FACT 1. The Veteran's right knee osteoarthritis status post lateral meniscectomy has been manifested by no more than slight lateral instability. 2. The Veteran's right knee flexion has been limited to no less than 40 degrees, including upon clinical examination and as determined to result during flare-ups. 3. The Veteran is only service connected for right knee disabilities, rated as 30 percent disabling in combination, and the evidence does not show his right knee disabilities prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for right knee osteoarthritis status post lateral meniscectomy have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for a disability rating in excess of 10 percent for right knee osteoarthritis with instability, rated as limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5260. 3. The criteria for a TDIU, to include referral for extraschedular consideration, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to July 1980, from April 1982 to December 1984, and from September 1987 to December 1991. This appeal arises from a July 2013 rating decision by the VA Regional Office (RO) and was previously remanded by the Board of Veterans' Appeals (Board) in November 2019. In the July 2013 rating decision, the RO continued a 20 percent rating for status post right knee lateral meniscectomy and a 10 percent rating for right knee degenerative joint disease (DJD). The Veteran appealed those ratings, and in November 2019, the Board remanded the appeal for additional development. Substantial compliance with the remand requests has been accomplished such that the Board may proceed to consider the claims. See Stegall v. West, 11 Vet. App. 268 (1998). While on remand, the RO, in an October 2020 rating decision, again continued the 20 percent rating for right knee disability, now characterized as right knee osteoarthritis status post lateral meniscectomy, and continued the separate 10 percent rating for right knee joint osteoarthritis with instability (previously characterized as right knee DJD). As further discussed below, these right knee disabilities have been rated under DCs 5257 and 5260, respectively. 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 Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board finds that the duties to notify and assist have been met. As discussed in the Board's November 2019 remand, the Veteran, on a VA Form 9 received in July 2016, contends that he cannot keep a job because of his knee issues. Thus, the Board found that a TDIU claim was reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation). In the November 2019 remand, the Board requested that the TDIU issue be readjudicated after any necessary development. After affording the Veteran a VA examination (conducted in August 2020) for his right knee increased rating claims, the RO made attempts to obtain records relevant to the TDIU claim. Specifically, the RO attempted to obtain Social Security Administration (SSA) records and vocational rehabilitation and employment (VR&E) records. There were no medical records from the SSA, and the VR&E records were already associated with the claims file. See October 2020 reply from SSA National Records Center; October 2020 emails regarding availability of VR&E records. Additionally, in October 2020, the RO sent the Veteran a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), which requested information that could have potentially assisted with the Veteran's TDIU claim. However, neither the Veteran nor his representative returned the completed form or even provided detailed information requested on such form, despite the submission of a February 2021 appellant's brief. Furthermore, neither the Veteran nor his representative has raised contentions regarding notice or assistance. Accordingly, the duties to notify and assist will not be further addressed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board"). The Board finds that, with respect to the TDIU claim, the Veteran has been afforded ample opportunity to assist with such claim, and the Board will proceed to adjudicate the claim based on the evidence currently of record. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his or her symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion (ROM) measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. In this case, the RO continued a 20 percent rating for right knee osteoarthritis status post lateral meniscectomy; as discussed in both the July 2013 and October 2020 rating decisions, a rating higher than 20 percent was not warranted because no severe subluxation or lateral instability was shown, as detailed below. See 38 C.F.R. § 4.59, 4.71a, DC 5257. Additionally, the RO continued the separate 10 percent rating for right knee joint osteoarthritis with instability; as discussed in both the July 2013 and October 2020 rating decisions, a rating higher than 10 percent was not warranted because limitation of flexion of 16 to 30 degrees was not shown, also discussed below. See 38 C.F.R. § 4.59, 4.71a, DC 5260. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new DC applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Here, however, because there is no evidence regarding the Veteran's right knee since February 7, 2021, only the former regulations apply. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction (AOJ). In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claims. Under the pre-amended criteria, degenerative arthritis as shown by x-ray studies is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion is noncompensable under the appropriate DC, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating, with the first code representing the underlying condition and the second code representing the residuals. 38 C.F.R. § 4.27. Here, the hyphenated DCs (DC 5003-5257 for right knee joint osteoarthritis with status post lateral meniscectomy and DC 5003-5260 for right knee joint osteoarthritis with instability) indicate that the right knee disabilities are rated based on evidence of degenerative arthritis with limited motion. Degenerative arthritis as shown by x-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion is noncompensable under the appropriate DC, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Under DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Under DC 5260, flexion of the leg limited to 60 degrees is rated as noncompensable (zero percent); flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Also relevant to any discussion of knee disabilities are the criteria under DCs 5256 through 5263. 38 C.F.R. § 4.71a. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between zero degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5261, extension of the leg limited to 5 degrees is rated as noncompensable (zero percent); extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Under DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Effective February 7, 2021, DC 5257 was amended to provide ratings for recurrent subluxation or lateral instability. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and 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 prescribing 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 prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for 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. DC 5257 also provides for ratings based on patellar instability. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 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 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note (1) to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) to DC 5257 states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Also effective February 7, 2021, DC 5262 is amended to provide for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula are to 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. Separate ratings are also provided for medial tibial stress syndrome (MTSS) or shin splints. Normal ranges of motion of the knee are to zero degrees for extension, and to 140 degrees for flexion. 38 C.F.R. § 4.71, Plate II. Turning to the evidence of record, VA afforded the Veteran a knee examination in July 2013, and another one that was conducted in August 2020, in accordance with the Board's November 2019 remand instructions. At the July 2013 examination, with respect to the right knee, the examiner noted that the Veteran reported the following symptoms: increased severity of chronic pain, swelling with prolonged ambulation, and flare-ups usually 5-6 times a year for 1-2 days with more severe swelling and stiffness. After in-person examination and review of the Veteran's claims file, the examiner reported a diagnosis of right knee degenerative arthritis. Right knee ROM testing showed: flexion to 100 degrees with objective evidence of painful motion and no limitation of extension; and after repetitive use testing, flexion to 110 degrees with no additional functional loss in ROM reported and no limitation of extension; and the examiner reported that pain on movement is a contributing factor to the disability's functional loss or functional impairment. Muscle strength testing and instability tests were all normal. The examiner noted that the Veteran had a right knee meniscectomy in 1982 with residuals of pain and loss of ROM, but no other pertinent physical findings, complications, conditions, or signs/symptoms related to the right knee. Finally, the examiner opined that the Veteran's right knee disability did not impact his ability to work. In the August 2020 examination report, the examiner noted the following right knee diagnoses: knee joint osteoarthritis, knee instability, status post lateral meniscectomy, and status post arthroscopic surgery with removal of loose body in 1986. After in-person examination and review of the Veteran's claims file, the examiner reported that the Veteran complained of the following symptoms: increased pain, edema, and decreased ROM; and difficulty standing, sitting with the knee bent, walking, using stairs, and walking on inclines. The Veteran also reported moderate to severe flare-ups occurring 1-2 times a month, lasting 1-2 weeks, precipitated by walking, running, driving long distances, standing for long periods, going up/down stairs, walking on hills or unlevel ground, and squatting or kneeling. Right knee ROM testing showed abnormal measurements: flexion from zero to 80 degrees and extension from 80 to zero degrees. The examiner reported difficulty in extending and flexing the knee; pain on rest/non-movement; and moderate localized tenderness or pain on palpation of the joint or associated soft tissue at the medial, lateral, and anterior knee. The examiner indicated that pain, weakness, and lack of endurance significantly limited functional ability and described such limitation in terms of ROM: flexion from zero to 80 degrees and extension from 80 to zero degrees. With respect to the Veteran's reported flare-ups, the examiner stated the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups and noted that fatigue, weakness, and incoordination significantly limited functional ability and described such limitation in terms of ROM: flexion from zero to 40 degrees and extension from 40 to zero degrees. The examiner also noted the following factors as contributing to the Veteran's right knee disability: weakened movement, swelling, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. Regarding muscle strength, the examiner reported 4/5 strength on right knee flexion and extension with no muscle atrophy. No right knee ankylosis was noted. The examiner reported a history of slight recurrent subluxation and lateral instability and the following results on joint stability testing: 1+ (0-5 millimeters) for anterior and posterior instability and normal medial and lateral instability. No recurrent dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment was reported. The examiner noted that the Veteran has, or had, a meniscus (semilunar cartilage) condition with meniscal dislocation, meniscal tear, frequent episodes of joint "locking," frequent episodes of joint pain, and frequent episodes of joint effusion manifested by increased pain, weakness, and chronic edema. The examiner noted pain on passive ROM of both knees and non-weight bearing of both knees. Unlike the 2013 examiner, the August 2020 examiner opined that the right knee disability impacts the Veteran's employment because the symptoms would cause difficulty with sitting, standing or bearing weight for longer than 30 minutes, walking further than 30 yards, going up/down more than one flight of stairs, squatting longer than five minutes, and walking on inclines further than 30 feet. The Board notes at the outset that the VA examinations, taken in conjunction with medical treatment records showing consistent right knee treatment, are an adequate basis upon which to determine the extent and severity of the Veteran's right knee disability. Although whether there was pain with passive movement and nonweight-bearing was not elicited at the earlier examination, the Veteran reported increased severity of chronic pain, swelling with prolonged ambulation, and flare-ups usually 5-6 times a year for 1-2 days with more severe swelling and stiffness, suggesting increased pain with active and weight-bearing activities. As such, active and weight-bearing motion as captured by both examinations is more likely to represent the most severe limitation of motion caused by the disability. When the Veteran reported flare-ups, the August 2020 examiner determined the additional loss of function in terms of ROM. Given the totality of the information, including the Veteran's own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. at 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. 1. A disability rating in excess of 20 percent for right knee osteoarthritis status post lateral meniscectomy is denied. The Board notes that the criteria under which the Veteran's right knee osteoarthritis status post lateral meniscectomy is currently rated, 38 C.F.R. § 4.71a, DC 5257, was affected by the February 7, 2021, amendments, but as mentioned above, only the older version applies here. Under DC 5257, the Veteran's right knee disability does not warrant a rating in excess of 20 percent at any time during the appeal period. The next higher rating of 30 percent requires severe recurrent subluxation or lateral instability. Here, a history of slight recurrent subluxation and slight lateral instability was shown, which is commensurate with only a 10 percent rating under DC 5257. Accordingly, a rating in excess of 20 percent for right knee osteoarthritis status post lateral meniscectomy under DC 5257 is not warranted. The Board has considered whether rating this right knee disability under additional or alternative DCs pertaining to the knees would be more appropriate or advantageous to the Veteran. Here, the RO has already granted a separate rating under DC 5260 for limitation of flexion. The Board notes that the August 2020 examiner noted that the Veteran has, or had, a torn right meniscus with "locking" and pain with effusion into the joint, or removal of the semilunar cartilage that would warrant a rating under DC 5258 or DC 5259, respectively. See generally Lyles v. Shulkin, 29 Vet. App. at 107 (holding that ratings under DC 5257, 5260, and 5261 do not necessarily preclude ratings under DCs 5258 and 5259). However, in this case, the Board finds that the symptoms for which DCs 5258 and 5259 account are adequately compensated by the ratings under DC 5257 and 5260. In this regard, the meniscal symptoms that could be compensated under DCs 5258 and 5259, to include locking, pain, and effusion, are adequately compensated by the totality of the ratings provided under DCs 5257 and 5260 because the instability and limitations of motion covered by DCs 5257 and 5260 overlap with those symptoms accounted for by DCs 5258 and 5259 in this particular case. That is, the August 2020 examiner equated right knee edema (or swelling) to a history of recurrent effusion, noted in the stability tests section of the examination report, and indicated that pain is a factor that significantly limits functional ability, which includes motion. Further, the Board notes that a locked knee is the inability to extend the lower limb fully as a result of tear of the medial semilunar cartilage; here, the Veteran is able to extend his right knee, and thus, the limitation of motion covered by DCs 5257 and 5260 also covers the report of a history of "locking" by the August 2020 examiner. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 989 (32nd ed. 2012). The rationale for the prohibition on pyramiding is that the Rating Schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology because such a result would overcompensate the claimant for the actual impairment in earning capacity suffered. See Lyles v. Shulkin, 29 Vet. App. at 113. Rating the disability under DC 5256 is not indicated here as there is no evidence of ankylosis or the functional equivalent resulting in complete limitation of motion. See Chavis v. McDonough, No 18-2928, 2021 WL 1432578 (Vet. App. April 16, 2021). Additionally, a rating under DC 5261 for limitation is not warranted because normal extension is to zero degrees, and there is no evidence of limitation of extension here. Also, there is no malunion or nonunion of the tibia and fibula and no genu recurvatum indicating that a rating under DC 5262 or DC 5263, respectively, is warranted. 2. A disability rating in excess of 10 percent for right knee osteoarthritis with instability, rated as limitation of flexion, is denied. The Board notes that the criteria under which the Veteran's right knee osteoarthritis with instability, rated as limitation of flexion, is currently rated, 38 C.F.R. § 4.71a, DC 5260, was not affected by the February 7, 2021, amendments. Under DC 5260, the Veteran's right knee disability does not warrant a rating in excess of 10 percent at any time during the appeal period. The next higher rating of 20 percent requires flexion limited to 30 degrees, and here, upon clinical examination or as determined to result after repeated use over time or during flare-ups, the most limitation of flexion was to 40 degrees. See 38 C.F.R. § 4.59; Mitchell v. Shinseki, 25 Vet. App. at 32. Accordingly, a rating in excess of 10 percent right knee osteoarthritis with instability, rated as limitation of flexion under DC 5260, is not warranted. Also, there is no evidence of incapacitating exacerbations that could possibly warrant a higher rating under DC 5003. Regarding the rating issues under DC 5257 and DC 5260, the Board notes that a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 16533, at *10 (Fed. Cir. June 3, 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Id. However, as outlined above, the evidence preponderates against the claims as the record shows that the Veteran does not have right knee disability that would warrant a rating higher than 20 percent under DC 5257 or a rating higher than 10 percent under DC 5260. The evidence is not in approximate balance, and thus, the benefit-of-the-doubt doctrine is not applicable. The evidentiary record does not reasonably raise the prospect that the Veteran's disabilities discussed above are not and cannot be adequately rated under the Rating Schedule. Accordingly, higher ratings for right knee osteoarthritis status post lateral meniscectomy and right knee osteoarthritis with instability, rated as limitation of flexion, are not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a TDIU is denied. The Board found in the November 2019 remand that the Veteran's TDIU claim stemmed from his right knee increased rating claim, received in September 2012. See Rice v. Shinseki, 22 Vet. App. 447. On a VA Form 9 received in July 2016, the Veteran contends that he cannot keep a job because of his knee issues. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19 (2016); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following disabilities will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. Here, the Veteran's service-connected disabilities all involve the right knee for a combined rating of 30 percent and may be considered as a single disability: 20 percent for osteoarthritis with status post lateral meniscectomy under DC 5257, 10 percent for osteoarthritis with instability rated under DC 5260, and zero percent for a surgical scar. Thus, the Veteran does not meet the initial eligibility requirements to receive TDIU benefits. 38 C.F.R. § 4.16(a). If a claimant does not meet the threshold criteria, a TDIU may still be assigned but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 38 C.F.R. §4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director, Compensation Service, for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board's sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence showing the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. In this case, the Board finds no basis to refer the matter for extraschedular consideration as the evidence does not show the Veteran's 30-percent-rated right knee disability prevents substantially gainful employment. The term "substantially gainful occupation" is not defined in the rating schedule. The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing a veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider a veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with co-workers, and demonstrating reliability and productivity. Id. As mentioned above, the Veteran did not return the VA Form 21-8940, which could have provided information relevant to the TDIU claim. However, the evidence includes older VR&E records showing that his civilian employment history included being a shift manager and also a cook at a McDonald's, and his military employment included being a radioman who operated various telecommunication equipment. These VR&E records, dated in 2006, also show that he graduated from high school and had plans to attend college. The evidence relevant to the TDIU claim during the relevant time period include VA treatment records and the VA examinations from July 2013 and August 2020, discussed above. It is unclear from the available evidence if the Veteran is currently employed, but an August 15, 2016, VA treatment record shows that he was unemployed at that time. The July 2013 examiner opined that the Veteran right knee disability did not impact his ability to work, while the August 2020 examiner opined that the right knee disability impacts the Veteran's employment because the symptoms would cause difficulty with sitting, standing or bearing weight for longer than 30 minutes, walking further than 30 yards, going up/down more than one flight of stairs, squatting longer than five minutes, and walking on inclines further than 30 feet. In consideration of this evidence, the Board finds that the Veteran's service-connected right knee disabilities have not prevented him from securing and following substantially gainful employment. While the disability likely impacts the Veteran's ability to work to some degree, this impact is contemplated by the currently assigned combined 30 percent rating. The evidence does not show how or why the right knee disabilities would affect employability to such a degree so as to prevent a substantially gainful occupation, such as a sedentary job where the Veteran is not required to be on his feet for long periods of time, or a job where he would not be able to get up and walk around if long periods of sitting were required. Sedentary employment is not explicitly defined in the VA regulations, but rather is considered on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history. See Rouse v. McDonough, No. 19-5699, 2021 WL 1379408 (Vet. App. April 13, 2021); Withers v. Wilkie, 30 Vet. App. 139, 149-50 (2018). Here, the Veteran did not indicate his current level of education or other training, but his available employment history includes being a shift manager and telecommunication equipment operator. There is nothing in the record that suggests his skills would not be transferrable to a position where he would not be required to be on his feet all day or where he could get up and walk around from a seated position if necessary. Thus, given the available evidence, the Board finds sedentary employment for the Veteran to be a plausible option because there is no evidence suggesting impairment of his mental ability. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Furthermore, neither the Veteran nor his representative have offered updated information regarding the Veteran's employability despite submitting a February 2021 appellant's brief and being asked to complete a VA Form 21-8940 in October 2020. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). (Continued on the next page) Therefore, because the most probative evidence does not show functional impairment caused by the Veteran's service-connected right knee disabilities that results in an inability to secure and maintain a substantially gainful occupation, entitlement to a TDIU is not warranted. Additionally, the Board thus finds that the evidence does not warrant referral for extraschedular consideration. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Regarding the TDIU issue, the Board notes that a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 16533, at *10 (Fed. Cir. June 3, 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Id. However, as outlined above, the evidence preponderates against the TDIU claim as the record does not show that the Veteran's service-connected right knee disabilities result in an inability to secure and maintain a substantially gainful occupation. Additionally, the Board thus finds that the evidence does not warrant referral for extraschedular consideration. The evidence is not in approximate balance, and thus, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Shereen M. Marcus Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Santiago, 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.