Citation Nr: 21040187 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 10-40 517 DATE: July 2, 2021 ORDER Entitlement to an initial disability rating of 20 percent, but no higher, for a right great toe disability, is granted. Entitlement to an initial disability rating greater than 20 percent prior to June 16, 2014, for right knee degenerative joint disease (DJD) is denied. Entitlement to an initial disability rating greater than 30 percent from August 1, 2015, for status post (s/p) total right knee replacement is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's right great toe disability is manifested by adverse symptomatology that equates to a moderately severe foot disability, but not severe, when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups at all times during the appeal. 2. The preponderance of the evidence showed that the Veteran's right knee DDD was not manifested by at least limitation of flexion to 45 degrees, limitation of extension to 20 degrees, or ankylosis even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups, at least slight recurrent subluxation or lateral instability, or impairment of the tibia and fibula with at least moderate knee or ankle disability prior to June 16, 2014. 3. The preponderance of the evidence shows that the Veteran's s/p total right knee replacement is not manifested by at least severe painful motion or weakness in the affected extremity, ankylosis, or limitation of extension to 30 degrees even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor is it manifested by nonunion of the tibia and fibula at any time from August 1, 2015. 4. The Veteran's service-connected disabilities preclude substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 20 percent rating, but no higher, for a right great toe disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5210-5284. 2. The criteria for a disability rating greater than 20 percent prior to June 16, 2014, for right knee DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5003, 5010, 5256 to 5263. 3. The criteria for a rating greater than 30 percent from August 1, 2015, for s/p total right knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5055, 5256, 5261, and 5262. 4. The criteria for entitlement to a TDIU have 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 February 1961 to February 1987. He appeals a November 2009 rating decision granting entitlement to service connection for a right knee disability with a 10 percent evaluation and a January 2010 rating decision granting entitlement to service connection for a right great toe disability with a 10 percent evaluation. During the period on appeal, the Veteran was awarded a higher disability rating of 20 percent for his right knee in a June 2017 rating decision. In that same decision, he was granted entitlement to a temporary 100 percent rating from June 16, 2014, to August 1, 2015, to convalesce from a total right knee replacement. Accordingly, that period is not on appeal. From August 1, 2015, he was granted a 30 percent rating for residuals s/p total right knee replacement. The Veteran presented testimony at a Travel Board hearing in April 2012 before a Veterans Law Judge (VLJ) who has since retired from the Board of Veterans' Appeal (Board). The Veteran was notified of this and given the opportunity to present testimony at an additional hearing before a different VLJ. The Veteran's representative declined such hearing on the Veteran's behalf in a memorandum dated March 2017 and requested that the Board proceed with adjudication and consider the transcript of the prior hearing and evidentiary record. The Board previously remanded the claims on appeal in November 2013, May 2017, and June 2020 for further development. Specifically, examinations were ordered to assess the current severity of the Veteran's right foot and right great toe disabilities. The Board is satisfied there has been substantial compliance with its previous remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board has reached this conclusion because the Agency of Original Jurisdiction (AOJ) conducted appropriate efforts to develop the record to include affording the Veteran VA examinations in January 2014 and March 2021 and seeking information relevant to his TDIU claim. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination or obtain additional records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). When evaluating joint disabilities rated on the basis of limitation of motion, 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 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has 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. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). It should be noted that, during the course of this appeal, the schedular criteria for evaluating some musculoskeletal disabilities were amended. Specifically, the amendment changed, among other things, criteria pertaining to knee replacements under 38 C.F.R. § 4.71a, DC 5055 and knee instability under 38 C.F.R. § 4.71a, DC 5257 as well as the criteria for rating arthritis under 38 C.F.R. § 4.71a, DCs 5003 and 5010 were amended effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Given the Veteran's claims seeking increased initial disability ratings for his left shoulder, and right knee disability were received prior to the effective date of the regulation changes, the Board must consider the Veteran's limitation of motion of left shoulder and right knee under both the old and the revised rating criteria and may apply the old rating criteria to the entire appeal period if the result is more favorable to the Veteran. Id. Moreover, the Board finds that a Remand is not required to provide the appellant with notice of the new musculoskeletal rating criteria and for the RO to adjudicates the claim applying the new criteria. The Board has reached this conclusion because it finds that nothing in the new criteria changes how, in substance, this Veteran's right great toe is rated because 38 C.F.R. § 4.71a, Diagnostic Code 5284 was not amended, the February 7, 2021, amendments do not apply to the rating to assigned the DDD of the right knee prior to June 16, 2014, and the changes to Diagnostic Code 5257 and Diagnostic Code 5262 do not change how the knee is rated post-February 7, 2021, because the Veteran does not have the listed disorders. Therefore, the Board finds that the Veteran will not be prejudiced by it adjudicating these claims at this time. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Next, in adjudicating below whether the Veteran meets the criteria for higher ratings for his right great toe and right knee disabilities the Board has not overlooked the Court's holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases. Specifically, the Board finds that the January 2014 and March 2021 examinations provide VA with medical opinion evidence adequate to rate the Veteran's disabilities when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups because the examiner specifically addressed each of these concerns. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination is not required. See Sabonis, supra. The Right Great Toe The Veteran contends that his great right toe disability warrants a higher rating than the 10 percent he currently receives. After review of the evidence, the Board finds that an initial rating of 20 percent, but no higher, is warranted. The Veteran's current 10 percent rating is assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5284. Hyphenated Diagnostic Codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. In the present matter, DC 5010-5284 rates for traumatic arthritis manifested by severity of functional impairment. Moreover, while the post-February 7, 2021, changed Diagnostic Code 5010 so it now provides that post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint, this change does not material change hot the disability is rated because it is still rated based on Diagnostic Code 5284. Under Diagnostic Code 5284, a 10 percent rating is warranted for a "moderate" foot disability, whereas 20 percent is warranted if the foot disability is characterized as "moderately severe." 38 C.F.R. § 4.71a, DC 5284. A maximum rating of 30 percent is warranted for a "severe" foot disability. Id. The words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than apply a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just," under 38 C.F.R. § 4.6. The Veteran was afforded VA examinations in January 2010 and January 2014. However, the Board has previously found both examinations to be inadequate for rating purposes in certain aspects. Specifically, the January 2010 examiner did not consider all of the Veteran's reported symptoms and the January 2014 examiner did not consider the Veteran's lay statements regarding his feet. The Veteran was afforded another VA examination in March 2021. The examiner noted diagnoses of right foot arthritis as well as residuals of tendon repair surgery. No diagnosis of any other right foot condition was noted. After examination of the Veteran, the examiner noted tender, painful joints of the great right toe that he characterized as moderate in severity. The examiner also noted the occurrence of moderate to severe flare-ups lasting 30-60 minutes. The frequency of such flare-ups was not reported. At his January 2010 VA examination, the Veteran reported a decreased ability to run and a decreased tolerance for prolonged standing and walking due to his right great toe disability. In April 2012 he testified that he was unable to ambulate without the use of protective footwear and reiterated that he did not have feeling in any of his toes. The Board acknowledges that the January 2010 examiner found it notable that the Veteran reported burning pain and numbness throughout the lateral aspect of his foot as this is opposite his right toe. A medical note from February 2012 confirms the Veteran's complaints that he has numbness throughout all the toes on his right foot. However, another medical note from February 2012 states that the Veteran can walk 2-3 miles per day and remains active. Indeed, a physician note from August 2016 reports that the Veteran ambulated to the clinic unaccompanied and without an assistive device. The Court has held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). As to a rating in excess of 10 percent for the right toe disability under DC 5284, the Board finds that when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), and with affording the Veteran the benefit of the doubt, the Board finds that the has exhibited symptoms of a moderately severe right toe disability throughout the period on appeal. See Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990); Fenderson, supra. The Board observes that the Veteran is competent to describe his ongoing symptoms and his statements are credible in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vat. App. 465 (1994). The Veteran's statements regarding the severity of his right foot condition are particularly persuasive. Although the Veteran is service-connected for a right great toe disability, he has consistently reported chronic numbness throughout his entire right foot during the period on appeal. In addition, he has reported severe flare-ups lasting 30 60 minutes with unpredictable onsets. At the same time, the Board finds that the preponderance of the evidence shows that the Veteran's disability picture does not more nearly approximate the criteria for the next higher rating. See, Owen, supra. For example, the Veteran does not require the use of an assistive device for ambulation and the record contains no evidence of falls or other instability issues related to the right toe disability. As to a rating in excess of 20 percent for the Veteran's right toe disability under one of the other criteria used to rate disabilities of the feet, the Board notes that the 20 percent rating already assigned meets or exceeds the maximum rating under DCs 5277, 5279, 5280, 5281, and 5282. Moreover, the Board finds that scope of the Veteran's disability does not include and/or the record shows that he does not have plantar fasciitis under DC 5269, flat foot under DC 5276, claw foot under DC 5278, malunion of or nonunion of tarsal or metatarsal bones under DC 5283. Therefore, the Board finds that it will not rate the Veteran's right toe disability under one of the other criteria used to rate disabilities of the feet. See Butts, supra. In summation, the evidence demonstrates that the Veteran's right great toe disability is most appropriately characterized as a moderately severe, but not severe, foot injury throughout the period on appeal. Hence, an initial rating of 20 percent, but no higher, is warranted. The Right Knee Disorders The Veteran seeks a higher disability rating than he currently receives for the periods on appeal. A. Rating Higher than 20 Percent prior to June 16, 2014. Prior to June 16, 2014, the Veteran's 20 percent rating for his right knee disability was assigned under 38 C.F.R. § 4.71a, DC 5261. Under old 38 C.F.R. § 4.71a, DC 5256, ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating. Under old 38 C.F.R. § 4.71a, 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. The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under old 38 C.F.R. § 4.71a, DC 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating. Under old 38 C.F.R. § 4.71a, DC 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating. Under old 38 C.F.R. § 4.71a, DC 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under old 38 C.F.R. § 4.71a, DC 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. If extension of the knee is limited to 30 degrees a 40 percent rating is in order. If extension of the knee is limited to 45 degrees a 50 percent rating is in order. Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under old 38 C.F.R. § 4.71a, DC 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating. Under old 38 C.F.R. § 4.71a, DC 5263, Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), that Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. In this regard, VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both a compensable limitation of flexion under DC 5260, and a compensable limitation of extension under DC 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disorder includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97 (July 1, 1997). As to a rating in excess of 20 percent for the Veteran's right knee disorder under DC 5256 due ankylosis, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for a higher, rating because the record is negative for a diagnosis of ankylosis or adverse symptomatology that equates to ankylosis. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; VA examinations dated in April 2010 and January 2014. In this regard, the Board finds it significant that the Court in Lewis, supra, defined ankylosis as immobility and consolidation of a joint due to disease, injury, or surgical procedure and at all times prior to June 16, 2014, while reduced, the right knee nonetheless had motion. See, e.g., VA examinations dated in April 2010 and January 2014. Additionally, the Board notes that the April 2010 and January 2014 VA examinations all reflect that he did not have ankylosis and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. Furthermore, the Board finds that the Veteran is not competent or credible to provide the missing diagnosis of ankylosis because this is a medical finding and he does not have the required expertise. See Davidson, supra. Given the above, the Board finds that the most probative evidence of record are the April 2010 and January 2014 VA examiners findings that the Veteran does not have ankylosis of the right knee because they are supported by examinations of the Veteran and because they specifically consider the appellant's lost motion as well as his pain with motion. See Owens, supra; Guerrieri, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran does not have ankylosis of the right knee or adverse symptomatology that equates to ankylosis despite the pain and lost motion documented in the record. See Owens, supra. Therefore, the Board finds that a rating in excess of 20 percent for the right knee disability under DC 5256 is denied because the record is negative for a diagnosis of ankylosis of the right knee or symptoms that equate to ankylosis of the right knee at any time prior to June 16, 2014. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra. As to a higher rating and/or a separate compensable rating for the Veteran's right knee disorder under DC 5260 and VAOPGCPREC 9-2004, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for at least a separate 10 percent rating prior to June 16, 2014, because flexion of the right knee was not limited to at least 45 degrees because it was 110 degrees at the April 2010 VA examination and 70 degrees at January 2014 VA examination. Moreover, while the Veteran's treatment records document his complaints and treatment for right knee problems, the Board finds that above VA examiners ranges of motion are not contradicted by any other medical evidence of record because treatment records never document less flexion in the right knee. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra, Colvin, supra. As to a rating in excess of 20 percent for the Veteran's right knee disorder under DC 5261, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for 30 percent rating prior to June 16, 2014, because extension of the knee was not limited to 20 degrees because it was 8 degrees at the April 2010 VA examination and 0 degrees at the January 2014 VA examination. Moreover, while the Veteran's treatment records document his complaints and treatment for right knee problems, the Board finds that above VA examiners ranges of motion are not contradicted by any other medical evidence of record because treatment records never document less extension. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra, Colvin, supra. As to higher and/or a separate rating under DC 5257 due to VAOPGCPREC 23-97, the April 2010 and January 2014 VA examinations are uniform in finding that the knee is stable. Moreover, while treatment records document the Veteran's complaints and treatment for right knee problems, nothing in these records contradicts the above VA examiners findings. See Colvin, supra. Accordingly, the Board finds that the criteria for a higher or a separate rating for the right knee disability due to instability are not met at all times prior to June 16, 2014, because the record never shows at least slight instability or subluxation. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; VAOPGCPREC 23-97; Fenderson, supra; Hart, supra. As to a higher rating under DC 5262 for impairment of the tibia and fibula, the Board notes that the record on appeal is negative for this adverse symptomatology. See, for example, VA examinations dated in April 2010 and January 2014. In the absence of this adverse symptomatology, the Board will not rate his service-connected right knee disorder under DC 5262 at any time prior to June 16, 2014. See, e.g., Butts, supra. Lastly, as to a higher rating under DC 5258 for dislocated cartilage, DC 5259 for removal of the semilunar cartilage when symptomatic, and/or under DC 5263 for Genu recurvatum, the Board notes that the disability rating already assigned the Veteran's service-connected right knee disorder meets or exceeds the maximum rating possible under these code sections at all times prior to June 16, 2014. See 38 C.F.R. § 4.71a. Therefore, increased ratings under these criteria is also denied. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. B. Rating Higher than 30 Percent from August 1, 2015. From August 1, 2015, the Veteran's 30 percent rating for his right knee disability was assigned under 38 C.F.R. § 4.71a, DC 5055, following convalescence from a total right knee replacement. During the pendency of the appeal, the regulations regarding knee replacements was amended. However, the rating criteria applicable to evaluating the knee after the convalescence period has ended remained unchanged. Hence, the result is the same under both the new and old criteria. Under DC 5055, the following evaluations are assigned after a total knee replacement: for chronic residuals consisting of severe painful motion or weakness in the affected area a 60 percent rating is warranted; for intermediate degrees of residual weakness, pain or limitation of motion a rating is assigned by analogy to diagnostic codes 5256, 5261, or 5262; otherwise, a minimum 30 percent evaluation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran was afforded a VA examination in March 2021. Initial range of motion was measured as 110 degrees of flexion with full extension. No evidence of pain or additional functional loss was noted after testing passive vs. active motion and weight vs. non weight-bearing. In addition, no additional functional loss in terms of range of motion was noted after repetitive use testing or after repeated use over time. The Veteran reported flare-ups of the right knee lasting up to an hour that he described as "moderate to severe." Upon examination of the Veteran and consideration of the evidence, the examiner determined that flare-ups did not result in pain, fatiguability, weakness, or lack of coordination such that the Veteran's functional ability was significantly limited. Indeed, no additional functional loss in terms of range of motion was noted. The examiner determined that the Veteran suffered from intermediate degrees of residual weakness, pain, or limitation of motion rather than chronic residuals consisting of severe painful motion or weakness. As to a rating in excess of 30 percent for the Veteran's right knee disorder under DC 5055, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for the 60 percent rating at any time from August 1, 2015, because March 2021 VA examination report does not show chronic residuals consisting of severe painful motion or weakness in the right knee. See Owens, supra. In fact, the March 2021 VA examiner specifically opined that the Veteran did not have evidence of pain on active or passive motion. Moreover, while the Veteran's treatment records document his complaints and treatment for right knee problems, the Board finds that above VA examiner's opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Furthermore, the Board finds that the Veteran is not competent or credible to provide the missing diagnosis because this is a medical finding and he does not have the required expertise. See Davidson, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran does not have chronic residuals consisting of severe painful motion or weakness in the right knee despite the pain and lost motion documented in the record. See Owens, supra. Therefore, the Board finds that a rating in excess of 30 percent for the right knee disability under DC 5055 at all times from August 1, 2015. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra. As to a rating in excess of 30 percent for the Veteran's right knee disorder under DC 5256 due ankylosis, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for a higher, rating because the record is negative for a diagnosis of ankylosis or adverse symptomatology that equates to ankylosis. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; VA examination dated in March 2021. In fact, the March 2021 VA examiner specifically opined that the Veteran did not have ankylosis. In this regard, the Board finds it significant that the Court in Lewis, supra, defined ankylosis as immobility and consolidation of a joint due to disease, injury, or surgical procedure and at all times during the appeal, while reduced, the right knee nonetheless had motion. See, e.g., VA examination dated in March 2021. Additionally, the Board notes that the March 2021 VA examination reflects that he did not have ankylosis and this medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Furthermore, the Board finds that the Veteran is not competent or credible to provide the missing diagnosis of ankylosis because this is a medical finding and he does not have the required expertise. See Davidson, supra. Given the above, the Board finds that the most probative evidence of record is the March 2021 VA examiner's findings that the Veteran does not have ankylosis of the right knee because it is supported by examination of the Veteran and because it specifically consider the appellant's lost motion as well as his pain with motion. See Owens, supra; Guerrieri, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran does not have ankylosis of the right knee or adverse symptomatology that equates to ankylosis despite the pain and lost motion documented in the record. See Owens, supra. Therefore, the Board finds that a rating in excess of 30 percent for the right knee disability under DC 5256 is denied at all times from August 1, 2015. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra. As to a rating in excess of 30 percent for the Veteran's right knee disorder under DC 5261, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for a higher rating from August 1, 2015, because extension of the knee is not limited to at least 30 degrees or worse because it was 0 degrees at the March 2021 VA examination. Moreover, while the Veteran's treatment records document his complaints and treatment for right knee problems, the Board finds that above VA examiner's range of motion is not contradicted by any other medical evidence of record because treatment records never document less extension. Furthermore, the Board finds that the Veteran is not competent or credible to provide the missing range of motion estimates because this is a medical finding and he does not have the required expertise. See Davidson, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran does not have extension of the knee limited to at least 30 degrees or worse. See Owens, supra. Therefore, the Board finds that a rating in excess of 30 percent for the right knee disability under DC 5261 is denied at all times from August 1, 2015. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra. As to a rating in excess of 30 percent for the Veteran's right knee disorder under DC 5262, the Board again notes that the record on appeal is negative for this nonunion of the tibia and fibula. See, for example, VA examination March 2021. Furthermore, the Board finds that the Veteran is not competent or credible to provide the missing diagnosis because this is a medical finding and he does not have the required expertise. See Davidson, supra. In the absence of this adverse symptomatology, the Board will not rate his service-connected right knee disorders under DC 5262 at any time from August 1, 2015. See, e.g., See Johnston, supra; Butts, supra. In reaching the above conclusions, the Board has also not overlooked the claims from the Veteran regarding his adverse symptomatology. See Davidson, supra. However, the Board finds the VA examiner's opinions as to the Veteran's adverse symptomatology more probative than any lay claims from the appellant to the contrary even though his symptomatology is observable by a lay person because the examiner has medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). By virtue of the foregoing, an initial disability rating in excess of 20 percent prior to June 16, 2014, for the Veteran's right knee disability is not warranted, and a disability rating in excess of 30 percent from August 1, 2015, for his right knee disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The TDIU Claim The Veteran claims that he is unemployable due to his service-connected disabilities back and right knee disabilities. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran's service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that the Veteran is service-connected for the following disabilities: Chronic Prostatitis (40 percent from March 7, 2008); Lumbosacral Spine Condition (10 percent rating prior to January 4, 2011, 20 percent rating from January 4, 2011, and 40 percent rating from May 5, 2015); Bilateral Hearing Loss (30 percent rating from August 26, 2005); Total Right Knee replacement (20 percent rating prior to June 16, 2014, temporary 100 percent rating from June 16, 2014, and a 30 percent rating from August 1, 2015); Diabetes Mellitus, Type II (20 percent rating from July 29, 2005); Right Shoulder Degenerative Joint Disease (20 percent rating from March 26, 2009); Bilateral Peripheral Neuropathy of the Lower Extremities (individual 10 percent ratings prior to January 4, 2011, and individual 20 percent ratings thereafter); Tinnitus (10 percent rating from February 1, 2001); Right Great Toe (20 percent from March 6, 2009); and noncompensable ratings for erectile dysfunction and scars. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher and he has a combined rating of 70 percent or higher. The next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran's VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), dated in April 2013, reported that he had not worked full-time and became he is too disabled to work in 2008 because of his service-connected disabilities. As to his work history, the Veteran reported that from 1987 to 2008 he worked 7.5 hrs a day as a crane operator. As to his education, the Veteran reported that he had 2-years of college. As to the Veteran's being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment as a crane operator as well as other possible employment that could make use of his work experience and 1-year of college, the Board finds that the medical records show that the problems caused by his service-connected Chronic Prostatitis, Lumbosacral Spine Condition, Bilateral Hearing Loss, Tinnitus, Right Knee DDD and Total Right Knee replacement, Diabetes Mellitus, Type II, Right Shoulder Degenerative Joint Disease, Bilateral Peripheral Neuropathy of the Lower Extremities, and Right Great Toe disability adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment due to pain, sit for the entire day, and interact effectively with co-workers and/or customers. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected Lumbosacral Spine Condition, Bilateral Hearing Loss, Tinnitus, Right Knee DDD and Total Right Knee replacement, Diabetes Mellitus, Type II, Right Shoulder Degenerative Joint Disease, Bilateral Peripheral Neuropathy of the Lower Extremities, and Right Great Toe disability would make it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments. Id. Similarly, the Board finds that that the Chronic Prostatitis, Lumbosacral Spine Condition, Bilateral Hearing Loss, Tinnitus, Right Knee DDD and Total Right Knee replacement, Diabetes Mellitus, Type II, Right Shoulder Degenerative Joint Disease, Bilateral Peripheral Neuropathy of the Lower Extremities, and Right Great Toe disability would make it very difficult to learn the new skills needed to work in most sedentary employments for the first time, sit for prolonged periods of time, and interact with his co-workers as well as any customers and carry out the duties required by such employment. Id. Given the above, the Board finds that the Veteran's service-connected disabilities prevent him from securing or following a "substantially gainful" occupation given his prior vocational history, work experience, and the impact his service-connected Chronic Prostatitis, Lumbosacral Spine Condition, Bilateral Hearing Loss, Tinnitus, Right Knee DDD and Total Right Knee replacement, Diabetes Mellitus, Type II, Right Shoulder Degenerative Joint Disease, Bilateral Peripheral Neuropathy of the Lower Extremities, and Right Great Toe disability have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment in as a crane operator, because of the problems they would cause in any work environment. Further development of this issue is simply not warranted in light of the history of this case. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). (Continued on the next page) In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, 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.