Citation Nr: 21040223 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-43 570 DATE: July 8, 2021 ORDER Entitlement to a rating in excess of 10 percent for right ankle sprain prior to March 8, 2016 is denied. From March 8, 2016, entitlement to a 20 percent rating, but no higher, for right ankle sprain is granted. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease (DJD) is denied. Entitlement to an initial rating of 60 percent from May 30, 2003 to September 26, 2003 and a 40 percent rating thereafter, but no higher, for intervertebral disc syndrome (IVDS) is granted. From September 26, 2003, entitlement to an initial 40 percent rating, but no higher, for right lower extremity radiculopathy of the sciatic nerve is granted. From September 26, 2003, entitlement to a separate 10 percent rating, but no higher, for left lower extremity radiculopathy of the sciatic nerve is granted. From January 16, 2013 to March 8, 2016, entitlement to a total disability rating due to individual unemployability (TDIU) is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to March 8, 2016, the Veteran's right ankle sprain was manifested by no more than moderate limitation of motion with no evidence of ankylosis. 2. Since March 8, 2016, when considering pain, flare-ups, and corresponding functional impairment, the Veteran's right ankle sprain has more nearly approximated marked limitation of motion with no evidence of ankylosis. 3. The Veteran's right knee DJD has been manifested by painful flexion and extension but noncompensable limitation of motion throughout the appeal period. 4. From May 30, 2003 to September 26, 2003, the Veteran's IVDS has more nearly approximated pronounced symptoms with bilateral sciatic pain and demonstrable muscle spasm, reduced reflexes of the right knee and ankle, and numbness of the right calf and right foot dorsum region. 5. From September 26, 2003, when considering pain, flare-ups, and corresponding functional impairment, the Veteran's back disability has more nearly approximated forward flexion limited to 30 degrees. 6. The Veteran's back disability has not been manifested by ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS) requiring bedrest prescribed by a physician at any point during the appeal period. 7. The Veteran's right lower extremity radiculopathy has been manifested by no more than moderately severe incomplete paralysis of the sciatic nerve throughout the appeal period. 8. The Veteran's left lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve throughout the appeal period. 9. From January 16, 2013 to March 8, 2016, the Veteran's service-connected back disability, bilateral sciatica, right knee DJD, and right ankle preclude him from securing and maintaining substantial gainful employment consistent with his education and occupational experience. 10. The Veteran's hearing loss did not manifest to a compensable degree within one year of separation from service; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, disease, or event. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right ankle sprain prior to March 8, 2016 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5271 (2019). 2. The criteria for entitlement to a 20 percent rating, but no higher, for right ankle sprain are met from March 8, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5271 (2019). 3. The criteria for entitlement to a rating in excess of 10 percent for right knee DJD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5260 (2019). 4. The criteria for an initial 60 percent rating. but no higher, from May 30, 2003 through September 26, 2003, and a 40 percent rating, but no higher, from September 26, 2003, for IVDS of the thoracolumbar spine are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5293 (2002, 2003) DC 5243 (2003, 2021), DC 5242 (2021), General Rating Formula for Diseases and Injuries of the Spine. 5. The criteria for entitlement to a separate 40 percent rating, but no higher, for right lower extremity radiculopathy are met from September 26, 2003. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, 4.124a, DC 5293(2003), DC 8520 (2019). 6. The criteria for entitlement to a separate 10 percent rating, but no higher, for left lower extremity radiculopathy are met from September 26, 2003. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, 4.124a, DC 5293(2003), DC 8520 (2019). 7. From January 16, 2013 to March 8, 2016, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16 (2019). 8. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1977 to August 1980 and from November 1981 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2013, August 2013, and October 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded these matters for further development. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) later 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. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); See also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. 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). 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 during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, 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. In this regard, 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. 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. 1. Entitlement to a rating in excess of 10 percent for right ankle sprain prior to April 3, 2019 is denied. 2. From April 3, 2019, entitlement to a 20 percent rating for right ankle sprain is granted. The Veteran asserts that he is entitled to a rating in excess of 10 percent throughout the appeal period. See May 2014 VA Form 21-526b, May 2015 Notice of Disagreement (NOD). The Veteran's right ankle sprain is rated under DC 5271, which provides ratings based on the limitation of motion of the ankle. 38 C.F.R. § 4.71a. The Veteran is currently in receipt of a 10 percent rating for his right ankle disability. The period on appeal is from May 21, 2014 plus the one-year look back period. See 38 C.F.R. § 3.400; See also April 2017 VA Form 21-526b. Relevant to the present case, 38 C.F.R. § 4.71a was amended effective February 7, 2021, and definitions were added to DC 5271 to describe what constitutes moderate and marked limitation of motion. 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). Under the old criteria, a 10 percent rating is warranted for moderate limitation of motion and a maximum 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Words such as "moderate" and "marked" were previously not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under the revised criteria, a 10 percent rating is warranted for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) and a 20 percent rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Additionally, DC 5270 evaluates ankylosis of the ankle, DC 5272 evaluates ankylosis of the subastragalar or tarsal joint, DC 5273 evaluates malunion of the os calcis or astragalus, and DC 5274 evaluates astragalectomy, or removal of the talus bone. However, as the record contains no evidence of any of these disabilities as it pertains to the right ankle, and the Veteran has not described symptoms that are suggestive of these disabilities, these Diagnostic Codes are not for application. 38 C.F.R. § 4.27. Throughout the appeal period, the Veteran submitted to VA examinations in August 2014 and in April 2019. At the August 2014 VA examination, the Veteran denied experiencing flare-ups of his right ankle. Initial range of motion testing revealed the Veteran's right ankle plantar flexion and dorsiflexion to be normal per 38 C.F.R. § 4.71a, Plate II; however, the August 2014 VA examiner reported the presence of objective evidence of painful motion in both plantar flexion and dorsiflexion. There was no additional loss in range of motion, or any other additional functional impairment noted on observed repetitive use testing. The Veteran's right ankle was not tender to palpation, there was no loss in muscle strength, no instability or laxity detected, and no ankylosis. The August 2014 examiner noted that the Veteran was evaluated and queried as to whether pain, weakness, fatigability or incoordination were significantly limiting the Veteran's ankle during flare-ups (Veteran denied flare-ups) or during repeated use over time and concluded that there was no such limitation. At the April 2019 VA examination, the Veteran reported experiencing swelling and laxity or instability of his right ankle along with flare-ups precipitated by overuse resulting in his right ankle feeling tight, swollen, and painful, relieved only by bedrest. Initial range of motion testing reveals the Veteran's right ankle dorsiflexion is limited to 15 degrees and his plantar flexion is limited to 15 degrees. The April 2019 VA examiner noted objective evidence of painful motion in both tested ranges that was resulting in functional loss. There was no additional loss on observed repetitive use testing; however, the April 2019 VA examiner opined that the Veteran's dorsiflexion and plantar flexion would be limited to 10 degrees each on repeated use over time and during flare-ups due to pain. The April 2019 VA examiner noted no objective loss in muscle strength, no measured atrophy, and no ankylosis. The examiner did find that the Veteran's right ankle had laxity when compared to his left ankle and concluded the right ankle disability would interfere with sitting, standing, changing position, walking, and kneeling. Private treatment records reflect the Veteran complained of pain overlying the joint line of his right ankle medially and laterally. See SSA records. At an initial orthopedic examination, the Veteran's plantar flexion and dorsiflexion were both limited to 10 degrees with observable swelling and tenderness upon palpation of the right ankle. See March 8, 2016 private treatment records. At VA podiatry consults, VA providers consistently note a decrease in the dorsiflexion range of motion and the Veteran's right ankle was injected with a steroid at the right sinus tarsi to relieve pain. See February 2016, November 2016 VA treatment records. Upon review of the totality of the record, the Board finds that a no greater than a 10 percent rating is warranted prior to March 8, 2016 based on a normal range of motion accompanied by pain but without functional loss demonstrated at the August 2014 examination. 38 C.F.R. § 3.344. A 20 percent rating is warranted for marked limitation of plantar flexion from March 8, 2016, the date upon which it became factually ascertainable limitation of motion in the Veteran's right ankle had worsened. See 38 C.F.R. § 3.400; See also March 8, 2016 private treatment records. The April 2019 VA examination report, as noted above, continues to reflect a marked limitation of plantar flexion. Accordingly, for the period since March 8, 2016, a rating of 20 percent, but no higher, is granted for the Veteran's right ankle sprain. U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Additionally, the Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. However, there is no indication of ankylosis, malunion of the os calcis or astragalus, or an astragalectomy in either ankle. See September 2004, March 2006, May 2017, July 2018, and December 2019 VA examination reports, and May 2015 DBQ. Thus, ratings under DCs 5270, 5272, 5273, and 5274 are not warranted. 3. Entitlement to a rating in excess of 10 percent for right knee DJD is denied. The Veteran asserts that his right knee DJD warrants a rating in excess of 10 percent. See August 2013 and May 2014 VA Forms 21-526b, March 2015 NOD, October 2015 VA Form 9, August 2017 NOD, February 2014 VA Form 9. The period on appeal for the Veteran's right knee DJD increase claim is from the date of claim, or August 22, 2013, plus the one-year lookback period. See 38 C.F.R. § 3.400; See also August 2013 VA Form 21-526b. By way of history, the Veteran's right knee was service connected in a May 2011 Board decision and rated as 10 percent disabling under DC 5010-5260, effective May 30, 2003, in a July 2011 rating decision. In the October 2014 rating decision on appeal, the Veteran's right knee DJD, addressed for the first time since service connection was established, was rated pursuant to DC 5257. The Board notes that in the October 2014 rating decision, the RO inexplicably and without any reason, explanation, or change in diagnosis, altered the Veteran's DC from 5010-5260 (established since May 2003) to DC 5257, and then proceeded to schedule a routine future examination on this minimum 10 percent rating without any demonstration of improvement. 38 C.F.R. §§ 3.327, 3.344, 4.13, 4.27. The September 2015 Statement of the Case (SOC) corrected the issue and addressed it properly under limitation of motion and DC 5260. Despite the Veteran having perfected the appeal of the assigned 10 percent right knee rating in his October 2015 VA Form 9, the RO proceeded to reexamine the Veteran in June 2017 and issued a new June 2017 rating decision continuing the 10 percent assigned under DC 5257 without addressing limitation of motion or DC 5260. The Veteran then filed an additional August 2017 NOD appealing the assigned right knee rating once again. The RO, in continuing to deny its improper processing of claims, issued a new January 2019 SOC wherein the Veteran's right knee was addressed once more using limitation of motion and DC 5260, not DC 5257. The Veteran then perfected the appeal once again with a February 2019 VA Form 9. The Board notes that the criteria under which the Veteran's right knee is rated in each SOC, 38 C.F.R. § 4.71a, DC 5260, was not affected by the February 7, 2021, amendments. Further, because his disability was rated based on evidence arthritis, the criteria under DC 5003 also was not affected as pertains to the Veteran and DC 5010 (traumatic arthritis), previously rated using DC 5003, now instructs it should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. 38 C.F.R. § 4.71a, DC 5010 (2021). Under the pre-amended criteria, arthritis as shown by x-ray studies is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DCs 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, 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, DCs 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 5260, flexion of the leg limited to 60 degrees is rated as 0 percent disabling; 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. VA regulations define normal flexion of the knee of 145 degrees and extension as 0 degrees. 38 C.F.R. § 4.71, Plate II. Under DC 5261, limitation of extension is rated as 0 percent disabling for extension limited to 5 degrees or less, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. Turning to the evidence of record, the Veteran was afforded VA examinations August 2014, June 2017, and April 2019. At the August 2014 VA examination, the Veteran was diagnosed with osteoarthrosis of the knee. He denied flare-ups of the right knee, though he did endorse increasing pain and stiffness. Initial range of motion measurements reveal flexion limited to 120 degrees and normal extension at 0 degrees. Objective evidence of painful motion was identified on flexion. However, the August 2014 VA examiner concluded that the Veteran's loss in range of flexion was normal for his body habitus and due to obesity, not his right knee condition. There was no additional loss in range of motion noted on repetitive use testing and the Veteran's right knee was not tender to palpation. The August 2014 noted no loss of muscle strength and no instability of the right knee was indicated during stability testing. The August 2014 VA examiner indicated that the Veteran requires the constant use of a cane for ambulation due to his right knee and right ankle disabilities. The August 2014 VA examiner concluded that pain, weakness, fatigability, or incoordination do not lead to additional functional losses during repeated use over time and, as noted above, the Veteran denied flare-ups. There was also no arthritis detected on x-ray by the August 2014 VA examiner; however, it is worth noting that the Veteran was already service connected for degenerative arthritis detected by a December 2009 MRI and addressed in an August 2011 VA examination report. The June 2017 VA examiner confirmed the diagnosis of right knee degenerative arthritis. The Veteran denied flare-ups of his right knee but endorsed constant right knee pain. Initial range of motion testing reveals flexion limited to 100 degrees with no reduction in extension (0). The June 2017 VA examiner noted painful motion on flexion and localized tenderness. There was no functional impairment or loss in range of motion on observed repetitive use testing or repeated use over time. As noted above, the Veteran denied flare-ups. There was no loss in strength, no atrophy, no ankylosis, or instability detected. The June 2017 examiner noted the Veteran had never had shin splints, a meniscal condition, or any surgery on his right knee. The Veteran reported regularly using a knee brace and cane to ambulate and relieve pressure on his right knee. The June 2017 VA examiner noted that the Veteran's right knee disability would have an impact on his ability to perform occupational tasks in that he complains about the knee all the time. At the April 2019 examination, the Veteran was diagnosed with right knee degenerative joint disease and continued to deny flare-ups of the knee but did endorse constant pain in the right knee. The Veteran reported he was engaged in physical therapy for his right knee (aquatic), utilized ibuprofen for light pain and Percocet for intense pain, and was receiving injections approximately every three months. Initial range of motion testing reveals flexion limited to 95 degrees, though extension is normal at 0 degrees. The April 2019 VA examiner indicated that the reduced range of motion contributed to functional loss in the form or interference with prolonged sitting, standing, walking, bending, or lifting. The examiner noted objective evidence of painful motion on flexion. There was no additional functional loss or loss in range of motion on observed repetitive use testing; however, the April 2019 VA examiner opined that flexion would be limited to 85 degrees on repeated use over time due to pain. The Veteran's right knee strength tested as normal and there was no measurable muscle atrophy. The April 2019 VA examiner noted no ankylosis, no history of subluxation, and joint stability testing revealed a normal right knee. The examiner noted no shin splints, no meniscus disorders, and no other pertinent physical findings. The examiner concluded that the Veteran's right knee DJD would impact his ability to sit, stand, change position, walk, lift, and bend. Private treatment records reveal that the Veteran was diagnosed with chondromalacia patellae, patellofemoral fluid collection and joint effusion, anterior subcutaneous edema confirmed by MRI. See April 2013 private treatment records. His right knee was noted to be slightly swollen with flexion limited to 100 degrees with normal extension. Id. In January and February 2014, the Veteran's right knee was tender to palpation, extension was normal, and flexion was limited to 100 degrees. See January and February 2014 private treatment records. In March 2016, swelling and effusion of the Veteran's right knee was documented, and his flexion was limited to 90 degrees and extension limited to 30 degrees. See March 2016 private treatment records. In November 2019, the Veteran reported that at times his knee "gives out." See November 2019 private treatment records. VA treatment records reveal the Veteran received Hyalgan shots to treat right knee pain and that his flexion was limited to 100 degrees and extension was normal. See April 2019 VA treatment records. Regarding the March 2016 private treatment records noting the Veteran's extension was limited to 30 degrees, the Board does not find this isolated note over the course of the nearly 9 years of the pending appeal to be dispositive. The overwhelming evidence of record, as noted above in detail, demonstrates that the Veteran does not have any limitation of extension in his right knee. Accordingly, as the preponderance of the evidence is against finding that the Veteran's extension was limited during the period on appeal, the Board finds that additional compensation under DC 5261 is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Likewise, although the Veteran reported that his right knee sometimes "gives out" during a back examination conducted by a private medical provider in November 2019, the Board finds this isolated non-responsive report to be insufficient to establish a finding of even slight instability of the right knee when the Veteran has not reported instability or giving out of the knee at any time when he was Seeking treatment for his right knee or was being examined by the VA in August 2014, June 2017, or April 2019 regarding the same. See English v. Wilkie, 30 Vet. App. 347 (2018). Accordingly, the Board finds that during the period on appeal, or from August 22, 2013 (plus the one-year look back period), the Veteran's right knee DJD has more closely approximated a 10 percent rating based on flexion limited to 85 degrees at its most limited during repeated use over time with arthritis confirmed by imaging and accompanied by painful motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (holding that painful motion of a major joint or group of minor joints caused by degenerative arthritis is deemed to be limited motion such that a minimum compensable rating is warranted under 5003 even though there is no actual limitation of motion). 4. Entitlement to an initial rating of 60 percent from May 30, 2003 to September 26, 2003 and a 40 percent rating thereafter, but no higher, for IVDS is granted. 5. From September 26, 2003, entitlement to an initial 40 percent rating, but no higher, for right lower extremity radiculopathy of the sciatic nerve is granted 6. From September 26, 2003, entitlement to a separate 10 percent rating, but no higher, for left lower extremity radiculopathy of the sciatic nerve is granted. The Veteran asserts that his low back disability, to include right lower extremity radiculopathy of the sciatic nerve, warrants a higher rating throughout the appeal period. See June 2013 Notice of Disagreement, Initially, the Board notes that the Veteran submitted to one VA examination of his thoracolumbar spine disability and right lower extremity radiculopathy throughout the appeal period, or since May 30, 2003. See April 2019 VA examination report. At that examination, the Veteran was diagnosed with intervertebral disc syndrome (IVDS) and paralysis of the sciatic nerve secondary to IVDS. The VA examiner indicated that these diagnoses persisted since the 1980s. Id. Private treatment records and other VA treatment records reveal additional diagnoses of chronic low back pain with sciatica in August 2000, degenerative disc disease in January 2004, degenerative arthritis in November 2004, displacement of lumbar intervertebral disc without myelopathy in December 2005, and lumbago with radiculopathy in June 2015. See August 2000, January 2004, November 2004 VA treatment records; December 2005 Social Security Administration records; June 2015 VA treatment records. The rating for the Veteran's IVDS was assigned an initial rating of 10 percent under 38 C.F.R. § 4.71a, DC 5242 in a May 2013 rating decision. See 38 C.F.R. § 4.71a, DC 5243 (Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25). His right lower extremity radiculopathy of the sciatic nerve was rated pursuant to 38 C.F.R. § 4.124a, DC 8520 at 10 percent for mild symptoms and made effective May 30, 2003, the date of service connection of IVDS. The Veteran appealed the initial evaluations. See June 2013 NOD. Thus, the period on appeal is from the date of service connection, or May 30, 2003. Throughout the appeal period, his combined rating for IVDS and paralysis of sciatic nerve is 20 percent. 38 C.F.R. § 4.25. As noted above, during the pendency of this appeal there have been regulatory changes amending the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4, including the rating criteria for evaluating lumbar spine disabilities. When regulations are revised during an appeal, the Board is generally required to consider the claim under both the former and revised schedular criteria and to apply the more favorable regulation. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application (which it does not here). VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Board will consider the claim under the pre-amended rating criteria for the entire appeal period, and the new criteria from the effective dates of the revisions. The criteria are explained here. Under the rating criteria pertaining to IVDS that was in effect prior to September 23, 2003, IVDS was assigned a 10 percent rating for IVDS that was mild, a 20 percent rating for IVDS that was moderate with recurring attacks, a 40 percent rating for severe IVDS with recurring attacks with only intermittent relief, and a 60 percent rating for IVDS that was pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2002). The regulations regarding IVDS were revised effective September 23, 2003. As of that date, IVDS (still rated under Diagnostic Code 5293) was to be evaluated by one of two alternative methods: based on total duration of incapacitating episodes over the previous 12 months, or, alternatively, by combining under 38 C.F.R. § 4.25 separate ratings for its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher rating. Under these revised standards, IVDS warrants a 40 percent evaluation when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5293 (2003). An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Id. Note (1). After another revision (effective September 26, 2003), the criteria for rating all spine disabilities, to include IVDS, are now set forth in a General Rating Formula for Diseases and Injuries of the Spine (General Formula). The revised criteria provide that IVDS is to be evaluated either under the General Formula (to include consideration of separate rating for orthopedic and neurological manifestations) or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: a 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237 (effective September 26, 2003). The revised criteria also allow for the assignment of separate ratings for any objective neurologic abnormalities of a service-connected spinal disability, including, but not limited to, bowel or bladder impairment. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1) (effective September 26, 2003). A rating higher than 40 percent for a spinal disability under the criteria in effect from September 26, 2003 is also potentially warranted under the Formula for Rating IVDS. Under these criteria, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (effective September 26, 2003). For purposes of rating IVDS under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The Board notes that the musculoskeletal rating criteria were updated again (effective February 7, 2021); however, the general rating formula for the spine, to which DC 5242 applies, did not change. Regarding DC 5243 for IVDS, a new note was added instructing that DC 5243 should be used only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. 38 C.F.R. § 4.71a, DC 5243 (February 7, 2021). Throughout the appeal period, DC 8520, which addresses evaluations for paralysis of the sciatic nerve, provides that a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, a 60 percent rating for severe incomplete paralysis with marked muscle atrophy, and a maximum 80 percent rating for complete paralysis (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). 38 C.F.R. § 4.124a, DC 8520. In this case, there is no evidence of any vertebra fracture and there is no evidence of any physician prescribed bed rest and the Veteran has not claimed otherwise. Hence, a higher rating on the basis of a vertebra fracture or IVDS based on incapacitating episodes is not warranted at any time during the claim period under either the old or the revised criteria for rating spinal disabilities. See 38 C.F.R. § 4.71a, DCs 5243 (2017), 5285, 5293 (2002, 2003). Moreover, ankylosis is defined in general as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28TH Ed. 1994) at 86). The rating criteria provide that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (2017). Accordingly, although the Veteran has experienced significant limitation of motion of the thoracolumbar spine, there is no evidence of his spine being fixed in position or ankylosed at any time during the claim period. Thus, a rating in excess of 40 on the basis of spinal ankylosis is not warranted under either the old or the revised criteria. See 38 C.F.R. § 4.71a, DCs 5286, 5289 (2002, 2003), 5237 (2017). Thus, the Board must consider the rating criteria for IVDS as in effect from the effective date of service connection (May 30, 2003) to September 26, 2003, and from September 26, 2003 to the present. As noted above, there is only one VA examination of record, completed in April 2019. At the April 2019 VA examination of the Veteran's thoracolumbar spine, the Veteran was diagnosed with IVDS and reported weekly flare-ups that are precipitated by overuse and present as tight, sharp pain (9 out of possible 10) and lasting for hours. Initial range of motion testing revealed the Veteran's forward flexion is limited to 65 degrees, extension is limited to 10 degrees, right lateral flexion limited to 15 degrees, left lateral flexion limited to 10 degrees, right lateral rotation limited to 20 degrees, and left lateral rotation limited to 25 degrees. The April 2019 VA examiner noted objective evidence of painful motion in all tested planes of motion resulting in functional loss and pain with weight bearing. There was no additional loss in range of motion on repetitive use testing. The April 2019 VA examiner opined that pain resulting from repeated use over time would additionally limit the Veteran's forward flexion to 55 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degree, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. The April 2019 VA examiner concluded that during a flare-up, pain would additionally limit the Veteran's forward flexion to 30 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 5 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. There was no evidence of a loss of muscle strength, and the Veteran's reflexes and sensory examination of the lower extremities were normal. The only symptom of radiculopathy reported by the Veteran or detected by the examiner was moderate intermittent pain of the right sciatic nerve. There was no ankylosis of the spine and no other neurologic abnormalities, such as incontinence. The examiner concluded that the Veteran's IVDS has not resulted in bedrest prescribed by a physician. The April 2019 VA examiner concluded there was no other pertinent physical findings, complications, conditions, signs, or symptoms regarding the Veteran's back disability to include scars. The examiner noted the Veteran's back disability would result in interference with sitting, standing, walking, lifting, bending, and driving. The examiner also noted the Veteran's back condition would require frequent changing of position. The April 2019 VA examiner, in conducting a peripheral nerves examination, diagnosed right thoracolumbar radiculopathy of the sciatic nerve. The Veteran reported difficulty with sitting, standing, walking, lifting, bending, and driving due to his radiculopathy. The Veteran's right lower extremity was noted to cause intermittent moderate levels of pain. There was no evidence of reduced strength, atrophy, diminished reflexes, or decreased sensation in the lower extremities. The April 2019 VA examiner found no trophic changes but did note an abnormal gait and attributed it to a combination of balance problems, ankle, knee, and back disabilities. The April 2019 VA examiner concluded the Veteran's right lower sciatic nerve radiculopathy was moderate in severity and demonstrative of incomplete paralysis. The available medical records that exist from the effective date of service connection, May 30, 2003, up to the April 2019 VA examination are consistent with the level of impairment demonstrated by the Veteran on that day and in many instances worse. Notably, the Veteran was treated by for low back pain accompanied by sciatic pain in July 2002, August 2002, July 2003. See July 2002, August 2002 VA treatment records, July 2003 Compensation and Pension "Joints" examination report. In July 2004 the Veteran's back was noted to have lost its normal lordosis (straightened) and was diagnosed with degenerative disc disease. See July 2004 VA treatment records. The Veteran was prescribed a transcutaneous electrical nerve stimulation (TENS) unit upon the failure of physical therapy to provide the Veteran with back pain and right lower extremity relief. See August 2004, November 2004 VA treatment records. Degenerative changes of the thoracolumbar spine with spinal stenosis and displacement of lumbar intervertebral discs were confirmed by magnetic resonance imaging (MRI) in November 2004. Id. The Veteran underwent injections to treat low back pain and L5 radicular pain on December 8, 2004; December 22, 2004; January 26, 2005; March 2005; April 8, 2005; April 21, 2005; and May 25, 2005. See Social Security Administration (SSA) Records. By June 2005, the Veteran reported that the relief provided by injections had receded. See June 2005 SSA Records. In May 2006, the Veteran received an additional injection to treat low back and sciatic pain. Id. In August 2005, the Veteran was recommended for L5-S1 surgery and was noted in August 2007 and October 2007 to have radiating right lower extremity pain with numbness along his lateral calf and a reduced right foot response with numbness along the dorsum. Id. October 2007 private treatment records note that regarding lumbar symptomatology, the Veteran had hypoactive deep tendon reflexes bilaterally. In January 2012, the Veteran was treated in an emergency room for back pain and sciatica that was reportedly severe and persisted for 3 days straight. See January 2012 private treatment records. In a July 2012 letter, a VA medical doctor advised that the Veteran's back pain and right lower extremity radiculopathy were causing difficulty with sitting, standing, or walking for long periods of time and resulting in sharp radiating pain down his entire right lower extremity. See July 2012 VA treatment records. In April 2013, an orthopedic surgeon noted that the Veteran's flexion was limited to 45 degrees, his extension limited to 10 degrees, his left and right lateral flexion limited to 10 degrees each, and his right and left lateral rotation were limited to 10 degrees each. See April 2013 private treatment records. The orthopedic surgeon documented diminished sensation in the right thigh, leg, and foot; diminished reflexes in right ankle; and diminished sensation in left leg and foot. Id. The orthopedic surgeon diagnosed the Veteran with herniated lumbar discs and bilateral lower extremity radiculopathy in the lumbar spine confirmed by MRI. Id. In May 2013, the private orthopedic surgeon detected moderate paraspinal muscle spasms. Range of motion testing revealed flexion limited to 45 degrees (normal 90 degrees), extension was limited to 10 degrees (normal 30 degrees), bilateral lateral flexion and bilateral rotation were all limited to 10 degrees each (normal 30 degrees). See May 2013 private treatment records. The private surgeon noted diminished sensation in the right thigh, leg, and foot as well as diminished reflexes in the ankle. Id. The Veteran's left leg and foot were also noted to have some diminished sensation. Id. A private medical doctor noted moderate intensity of thoracolumbar muscle spasms with flexion limited to 45 degrees of 90, extension limited to 10 degrees of 30, right lateral bending limited to 10 degrees of 30, left lateral bending limited to 10 degrees of 30, and right and left rotation limited to 15 degrees of 30. See SSA records; January 2014, February 2014 private treatment records. In February 2014, the orthopedic surgeon found diminished extensor hallucis longus (EHL) on right as well as diminished dorsiflexors of the right foot. See February 2014 private treatment records, SSA Records. There was notable diminution of right ankle and right knee reflexes. Id. The orthopedic surgeon also noted diminished strength of quadriceps. Id. In March 2016, the private orthopedic surgeon noted muscle spasms in thoracolumbar region with reversal of lumbar lordosis. See March 2016 private treatment records. Range of motion testing revealed that flexion is limited to 30 degrees, extension is limited to 10 degrees, bilateral flexion and bilateral rotation were limited to 10 degrees each. Id. The orthopedic surgeon continued to endorse a diagnosis of degenerative thoracolumbar spine disease with bilateral lower extremity lumbar radiculopathy. Accordingly, the Board finds that for the period from May 30, 2003 to September 26, 2003, the Veteran's IVDS was more closely manifested by pronounced symptoms, compatible with bilateral sciatic pain and demonstrable muscle spasm, reduced reflexes of the right knee and ankle, and numbness of the right calf and right foot dorsum region. Thus, a 60 percent rating is warranted from May 30, 2003 to September 26, 2003 for the Veteran's IVDS and bilateral lower extremity sciatica. 38 C.F.R. §§ 4.6, 4.7, 4.71a, DC 5293 (2002). From September 26, 2003, when musculoskeletal and neurological manifestations could be rated separately per a change in VA regulations, the Board finds that the Veteran's IVDS, rated pursuant to the "General Rating Formula for Diseases and Injuries of the Spine" was manifested by forward flexion of the thoracolumbar spine limited to 30 degrees. Thus, a 40 percent rating for the Veteran's limitation of flexion caused by IVDS is warranted from September 26, 2003. 38 C.F.R. §§ 4.6, 4.7, 4.71a, DC 5243. Considering all of the evidence of record, the Board finds that the Veteran's right lower extremity radiculopathy of the sciatic nerve more closely manifested as moderately severe, or a 40 percent rating, for symptoms such as decreased sensation, decreased reflexes, severe pain resulting in difficulty ambulating, and requiring continual injections and physical therapy for years to reduce pain to a manageable level. 38 C.F.R. §§ 4.6, 4.7, 4.124a, DC 8520. The Veteran's left lower extremity was consistently noted by the Veteran's private orthopedic surgeon to result in pain. Thus, and resolving any reasonable doubt in the Veteran's favor, the Board finds that a separate 10 percent rating for left lower extremity radiculopathy of the sciatic nerve is warranted from September 26, 2003 for mild incomplete paralysis. 38 C.F.R. §§ 4.6, 4.7, 4.71a, 4.124a, DC 5243, 8520. The Veteran's combined rating from September 23, 2003 for his IVDS with bilateral lower extremity is 80 percent, thus it is more beneficial to the Veteran to rate his limitation of flexion separately from his neurological manifestations under the revised criteria. 38 C.F.R. § 4.25. For the reasons set forth above, the Board finds that from May 30, 2003 to September 23, 2003, a 60 percent rating, but no higher, is warranted under DC 5293 for the Veteran's IVDS, to include his neurological manifestations. From September 26, 2003, the Veteran's IVDS warrants a 40 percent rating, but no higher, for flexion limited to 30 degrees or less pursuant to DC 5243 and the "General Rating Formula for Diseases and Injuries of the Spine." His right lower extremity warrants a 40 percent rating and his left lower extremity warrants a 10 percent rating, but no higher, from September 23, 2006. 38 C.F.R. §§ 4.71a, 4.124a. 7. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted from January 16, 2013. The Veteran asserts that the combination of his various service-connected orthopedic disabilities have prevented him from maintaining employment. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009); See also April 2016 Appellate Brief, April 2019 VA Form 21-8940. The Board notes that the Veteran opted-in to the Appeals Modernization Act in February 2021; however, the legacy appeal must still address TDIU pursuant to Rice. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). TDIU can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he 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. 38 C.F.R. § 4.16(a). This Board decision granted a 60 percent rating for the Veteran's spine effective May 30, 2003 above. In addition, the Veteran also is in receipt of a 10 percent rating for his right knee DJD, a 10 percent rating for his right ankle strain both effective from May 30, 2003. Thus, from May 30, 2003, his combined rating is 70 percent overall with one disability rated as at least 40 percent disabling; thus, he meets the schedular rating for TDIU from May 30, 2003. On September 26, 2003, the Veteran's lumbar and neurological manifestations (bilateral lower extremity sciatica) were separated per a regulation change. At that time the Veteran's back disability was rated as 40 percent disabling, his right sciatic nerve is rated as 40 percent disabling, his left sciatic nerve is rated as 10 percent disabling, and his right knee DJD and right ankle strain remain 10 percent disabling each and combine for an 80 percent rating. Obstructive sleep apnea rated as 50 percent disabling and tinnitus rated as 10 percent disabling were added on October 4, 2011 combining for a 90 percent rating. On August 22, 2013, the Veteran's right shoulder was service connected as 20 percent disabling, and the combined rating remained 90 percent. On May 21, 2014, the Veteran was granted service connection for his left knee rated as 10 percent disabling and the combined rating remained 90 percent. In this Board decision, the right ankle strain was increased to 20 percent disabling effective March 8, 2016; therefore, the Veteran's combined rating from March 8, 2016, is 100 percent disabling. Thus, the question for the Board is whether the Veteran was precluded, by reason of his service-connected disabilities, from securing or following "substantially gainful employment" from May 30, 2003, but prior to March 8, 2016. The Veteran reports that he last worked full-time on January 29, 2013 and became too disabled to work on February 10, 2014. See April 2019 VA Form 21-8940. The Veteran reports that his last employment was with the Department of Veterans Affairs as Federal Law Officer working 48 hours per week from June 2001 to January 2013 earning $4000.00 per month. In a VA Form 21-4192 completed by a Department of Veterans Affairs Medical Center where the Veteran was last employed, the VA reported the Veteran was medically retired due to disability on January 15, 2013; however, the VA reports that the Veteran was paid 12 months of worker's compensation as a concession. See February 2020 VA Form 21-4192. VA regulations require that a Veteran may not receive Federal Worker's Compensation and VA compensation for the same disability. 38 C.F.R. § 3.708. However, this regulation applies the specific amount of compensation the veteran is entitled to receive and not whether he is entitled to a TDIU rating. Thus, the period for consideration is from the first day after the Veteran's last date of full-time employment, or January 16, 2013, to March 8, 2016, the date the Veteran's combined ratings are 100 percent. 38 C.F.R. § 3.102. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58 (2019). As noted above, the Veteran reports he last worked full-time through January 15, 2013, has not worked since January 16, 2013, and has had no income earned through employment. See April 2019, September 2019 VA Forms 21-8940. Thus, he meets the economic component for a TDIU throughout eligible period. Turning to the noneconomic component, the Veteran reports that he completed high school, obtained an Associate degree in criminal justice, and completed additional firearms instructor training in 2013. See April 2019 VA Form 21-8940, August 2020 Vocational Evaluation. During the Veteran's last period of active duty from November 1981 to June 1995, his military occupation specialty (MOS) was that of a LOS-F-H (line of sight-forward-heavy weapon) crewmember and a Vulcan (anti-aircraft gun) crewmember. The Veteran reports that after his discharge from active duty, he worked as a correctional officer in a state prison system from November 1995 to June 2001 and with the Department of Veterans Affairs as a police officer training sergeant from July 2001 to March 2014. See April 2019 VA Form 21-8940, SSA Work History Report. The Veteran reports that in his role as a Federal Law Enforcement Officer with the VA required him to use force to restrain people, conduct firearms training, wearing a pistol belt with weapon and additional magazines adds an additional 25 pounds, carrying equipment and ammunition for weapons training (BHL), uploading and downloading of training equipment, hand to hand combat training, sitting and doing computer work, hospital patrols requiring going up and down 7 flights of stairs, and foot patrols. See April 2013 private treatment records, SSA Work History Report. Thus, the Board finds that the Veteran's entire work history, from active duty until the time of his medical retirement, he was engaged in an occupation that required continuous and strenuous physical activity. In August 2020, the Veteran submitted to a Vocational Assessment that concluded the Veteran's occupation in law enforcement were medium in physical demand and does provide a worker with a skill base that transfers laterally to similar occupations with similar physical demands and similar academic requirements but does not provide the worker with a skill base that transfers to alternative sedentary occupations. See August 2020 Private Vocation Evaluation. In reviewing the Veteran's medical history, the vocational evaluator concluded that the Veteran's service-connected orthopedic disabilities would cause him to need to take unpredictable breaks away from any work station, likely need to lie down and rest, and change position about every 30 minutes. The evaluator noted that the requirement by most employers for the Veteran to maintain regular attendance and would not tolerate the likely frequent unscheduled absences from the Veteran based on his service-connected orthopedic disabilities. The evaluator opined that, within a high degree of certainty, the Veteran is unable to secure, follow, or maintain/sustain any form of substantially gainful occupation as a result of his service-connected disabilities. Id. The Board also notes the Veteran is in receipt of Social Security Disability Income, effective January 29, 2013, based primarily on back disorders and secondarily on other manifestations of osteoarthritis. See April 2013 SSA Disability Determination and Transmittal. The disorders reported by the Veteran, other than the primary reason for the grant of disability, included the service-connected bilateral knee disabilities as well as multiple non-service connected disabilities (bilateral carpal tunnel syndrome, residuals of a left hand fracture, neck disability). See January 2013 Disability Determination Explanation. The June 2017 VA examiner noted that the Veteran's right knee disability would have an impact on his ability to perform occupational tasks in that his right knee is in constant pain. The April 2019 VA examiner indicated that the Veteran's right knee reduced range of motion contributed to functional loss in the form or interference with prolonged sitting, standing, walking, bending, or lifting. Likewise, the April 2019 VA examiner concluded the Veteran's right ankle would swell after sitting for 15 minutes and that his ankle would interfere with the ability to stand more than 15 minutes, changing positions, walking more than one-half mile, and kneeling. In April 2019, a VA examiner concluded the Veteran's back disability would interfere with work in that he would be unable to carry the heavy gear required by his role as a Federal Law Officer and would need to change desk position every 15 minutes in any desk-type job. The April 2019 VA examiner went on to note that the Veteran's back disability interferes with his daily activity in that he is no longer able to engage in sports and is in continuous pain. Here, the most probative evidence of record shows that the Veteran is unable to secure and maintain substantially gainful employment due the combination of his service-connected orthopedic disabilities, to include his back disability, bilateral lower extremity sciatica, bilateral knee disabilities, right ankle disability, and right shoulder disability. Accordingly, a TDIU is granted from January 16, 2013, or the first day after the date he last worked full time, to March 8, 2016, the date the Veteran's ratings combined to 100 percent. 38 C.F.R. § 3.400. As the Veteran's TDIU is granted based on combination of multiple and distinct disabilities, he is not eligible for consideration for the grant special monthly compensation at the housebound level. See 38 U.S.C. § 1114 (s)(1), 38 C.F.R. § 4.16(a); see also Bradley v. Peake, 22 Vet. App. 280 (2008). Service Connection 8. Entitlement to service connection for bilateral hearing loss is denied. The Veteran asserts that he is entitled to service connection for bilateral hearing loss based on his exposure to acoustic trauma on active duty. See July 2014 NOD, July 2014 Veteran lay statement. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases (such as hearing loss as an organic disease of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection: "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385. Turning to the evidence, the Veteran's service treatment records show no complaint, treatment, or diagnosis of hearing loss during his service. See August 1977, November 1979, June 1980, September 1981, October 1984, December 1989, August 1994, November 1994 Audiograms. Here, the Veteran was an employee of the Department of Veterans Affairs, and in his employment as a law enforcement officer, he was enrolled in a hearing conservation program administered by a VA medical center. In this regard, it is noted in his hearing conservation plan that he is exposed to loud noises, to include gunfire, as a noise risk. See October 2002 VA treatment records. As a part of the hearing conservation program, the Veteran submitted to VA administered audiograms on annual basis. While the tests do not contain Maryland C-N-C scores, they do contain auditory thresholds for the relevant frequencies. 38 C.F.R. § 3.385. VA treatment records contain audiograms from October 2002, October 2003, October 2004, November 2005, November 2006, September 2007, August 2009, August 2010, July 2011, and August 2013. See, generally, VA treatment records. The Board notes that none of these audiograms, conducted in conjunction with the Veteran's continuing employment, demonstrate hearing loss for VA purposes. 38 C.F.R. § 3.385. The Veteran submitted to two VA examinations throughout the appeal period in August 2013 and April 2019. Pure tone thresholds at the August 2013 VA examination were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 35 35 LEFT 25 25 30 35 35 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 82 percent in the left ear. The audiologist diagnosed bilateral sensorineural hearing loss. 38 C.F.R. § 3.385. The August 2013 VA examiner reviewed the Veteran's available audiograms from his entry and separation from active duty for both periods of service. The examiner noted the audiograms at the time of his discharge were inconsistent with the hearing loss demonstrated on the August 2013 audiogram. The VA examiner likewise reviewed an August 2008 audiogram noting that the Veteran's hearing loss was normal at that time for VA purposes. The examiner opined that the Veteran's recent development of vertigo in 2012 was most likely than not the cause of his current hearing loss as opposed to any conceded acoustic trauma in service. Pure tone thresholds at the April 2019 VA examination were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 30 35 40 LEFT 30 30 35 40 45 Speech audiometry revealed speech recognition ability of 90 percent bilaterally. The audiologist diagnosed bilateral sensorineural hearing loss. 38 C.F.R. § 3.385. The examiner opined that although the Veteran's MOS was probably for hazardous noise exposure, that it was less likely than not the cause of his current hearing loss. In support of his opinion, the April 2019 VA examiner cited to the Institute of Medicine report of 2005 that concluded, based on current knowledge of cochlear physiology, that there was no sufficient scientific basis for the existence of delayed-onset hearing loss. The April 2019 VA examiner went continued discussing the IOM report, noting that while the IOM did not rule out that delayed onset may exist because the requisite longitudinal animal and human studies have not been completed, that based on the current knowledge of acoustic trauma and instantaneous or rapid development of noise-induced hearing loss, that there was no reasonable basis for finding that the Veteran's current hearing loss is delayed in its onset from acoustic trauma during active duty service ending in 1995. The April 2019 VA examiner went on to opine that the Veteran's current hearing loss was neither caused by nor aggravated by his service-connected tinnitus. In support of his opinion, the examiner conceded that tinnitus is oftentimes a symptom of hearing loss, that there was no medical literature to support that hearing loss is caused by or aggravated by tinnitus. Additionally, it is clear from the evidence of record that the Veteran's hearing loss did not have its onset within one year of his discharge from active duty and was first diagnosed in August 2013, nearly 20 years post-discharge and after being employed almost consecutively in law enforcement jobs that require firearms training. The Board has considered the Veteran's statements that his hearing loss was caused by his service; as a layperson, he is competent to testify regarding observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the probable etiology of a disorder such as hearing impairment falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has not demonstrated or alleged medical expertise, and he does not offer any supporting medical evidence. Therefore, his opinion as to the cause of the hearing loss has no probative value. For the reasons set forth above, the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss is related to his in-service noise exposure. Accordingly, service connection must be denied. 38 C.F.R. § 3.303, 3.304. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Idongesit T. Umo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.