Citation Nr: 21041326 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-39 903 DATE: July 8, 2021 ORDER A disability rating in excess of 20 percent for right knee traumatic arthritis resulting in limitation of flexion is denied. For the period prior to August 21, 2020, a disability rating in excess of 10 percent for right knee instability is denied. For the period from August 21, 2020, a disability rating in excess of 20 percent for right knee instability is denied. A separate compensable disability rating for removal of right knee meniscus is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right knee traumatic arthritis has not been productive of limitation of flexion to 15 degrees or less, or the functional equivalent thereof. 2. Prior to August 21, 2020, the Veteran's right knee instability was not productive moderate recurrent subluxation or lateral instability. 3. From August 21, 2020, the Veteran's right knee instability was not productive moderate recurrent subluxation or lateral instability; from February 7, 2021, his right knee instability is not the result of unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 4. Throughout the appeal period, the right knee meniscus condition has not been productive of frequent episodes of locking, pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for an award of a disability rating in excess of 20 percent for right knee traumatic arthritis resulting in limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. For the period prior to August 21, 2020, the criteria for an award of a disability rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. For the period from August 21, 2020, the criteria for an award of a disability rating in excess of 20 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. The criteria for an award of a separate compensable disability rating for the right knee disability based on removal of semilunar cartilage have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1994 to February 1998. In December 2018, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See September 2020 supplemental statement of the case. Higher Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). With any form of arthritis, painful motion is an important factor of disability; the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 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. 38 C.F.R. § 4.59. The Veteran is in receipt of a 20 percent rating for traumatic arthritis based on limitation of flexion pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Veteran is also in receipt of a 10 percent rating for right knee instability for the period prior to August 21, 2020, and a 20 percent rating for right knee instability from August 21, 2020 pursuant to 38 C.F.R. § 4.71a, 5010-5257. As an initial matter, there have been changes to the musculoskeletal regulations effective February 7, 2021. The Board may continue the old rating criteria to rating periods prior to February 7, 2021 but may apply whichever set of criteria is more favorable to periods after February 7, 2021 if the claim was pending prior to that date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under 38 C.F.R. § 4.71a (2020), which sets forth the schedular rating criteria for the musculoskeletal system, Diagnostic Code 5010 directs VA to rate arthritis due to trauma under degenerative arthritis, or Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis is to be evaluated on the basis of limitation of motion as per the diagnostic codes for the specific joint or joints. Id. If, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating can be assigned where there is x-ray evidence of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating can be assigned if such involvement includes occasional incapacitating episodes. Id. Note (1) under Diagnostic Code 5003 provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. Under the new regulations, Diagnostic Code 5010 indicates that post-traumatic arthritis is 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. Under the new regulations, Diagnostic Code 5003 for degenerative arthritis, other than post-traumatic, established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as: 10 percent with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; or as 20 percent with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1): The 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2): The 20 and 10 percent ratings based on X-ray findings will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. 38 C.R.F. § 4.59 grants a minimum compensable rating under applicable diagnostic code for range of motion that is painful. For the knee, this is diagnostic codes 5260 or 5261 for flexion and extension. This has not changed with the February 7, 2021 update to the diagnostic codes. Under Diagnostic Code 5260, a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; and a non-compensable rating will be assigned for limitation of flexion of the leg to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating was assigned when extension was limited to 5 degrees, a 10 percent rating when limited to 10 degrees, a 20 percent rating when limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of knee motion is 140 degrees of flexion and 0 degrees of extension. 38 C.F.R. § 4.71, Plate II. The February 7, 2021 regulations changed diagnostic codes 5257, the diagnostic code for rating knee instability. Prior to February 7, 2021, diagnostic code 5257 provided rating criteria for "recurrent subluxation or lateral instability" with three levels, severe (30 percent), moderate (20 percent), and slight (10 percent). Under the old rating criteria pursuant to Diagnostic Code 5257, a 10 percent rating was warranted for slight recurrent subluxation or lateral instability. A 20 percent rating was warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating was warranted for severe recurrent subluxation or lateral instability. Effective February 7, 2021, Diagnostic Code 5257 provides the following: For patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or walker. For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability without a prescription from a medical provider for an assistive device (e.g., cane(s), crutches(es), walker) or brace for ambulation. A 20 percent rating is warranted for one of the following: a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive devices (e.g. cane(s), crutch(es), walker) for ambulation. b) Unrepaired or failed repair of complete ligament tear causing persistent instability and medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tera causing persistent instability and a medical provider prescribe both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Diagnostic Code 5258 provides for a 20 percent evaluation on the basis of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. This is the only available evaluation under Diagnostic Code 5258, and it is unchanged by the February 7, 2021 update. Diagnostic Code 5259 provides for a 10 percent evaluation on the basis of symptomatic removal of the semilunar cartilage. 38C.F.R. §4.71a, Diagnostic Code 5259. This is the only available evaluation under Diagnostic Code 5259, and it is unchanged by the February 7, 2021 update. Diagnostic Codes 5256, 5262, and 5263 also address ratings for knee disabilities. However, in this case, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263); thus, the Diagnostic Codes pertaining to such impairments are not applicable. 1. A disability rating in excess of 20 percent for right knee traumatic arthritis resulting in limitation of flexion is denied. 2. For the period prior to August 21, 2020, a disability rating in excess of 10 percent for right knee instability is denied. 3. For the period from August 21, 2020, a disability rating in excess of 20 percent for right knee instability is denied. 4. A separate compensable disability rating for removal of right knee meniscus is denied. The Veteran seeks to establish higher ratings for manifestations of high right knee disability. In the November 2020 post-remand brief, the Veteran's representative asserted that a higher rating is warranted where the Veteran's knee condition shows a severity that would benefit from a total knee replacement but is not eligible due to his age On VA examination in October 2012, the Veteran reported flare ups with pain reaching 7 out of 10 depending on activities such as walking or sitting for long periods, lasting a day or two. He has treated using over-the-counter medication, ice, and elevation. He indicated regular use of a right knee brace to provide stability and reduce inflammation and pain. The VA examiner recorded right knee flexion to 105 degrees, with objective evidence of painful motion at 90 degrees. It was also noted that the Veteran had full extension of the right knee, to include as due to pain. No additional functional loss was observed after repetitive testing. The examiner noted that right knee joint stability testing was normal, with no evidence or history of recurrent subluxation/dislocation. The examiner noted that symptoms of a semilunar cartilage condition included frequent episodes of joint pain. There were no residual signs or symptoms due to a prior meniscectomy. On VA examination in September 2014, the Veteran reported regular and consistent pain. He stated that increased walking causes tenderness. He noted an achy pain daily accompanied by popping and clicking at times. The Veteran stated he has stopped doing a lot of activities that he used to. He could squat down but the knee felt a little unstable. He noted pain in the right anteromedial knee and posteromedially. He noticed increased pain in the right knee with walking more than one mile and standing in one place for several hours. He did not report flare ups. The VA examiner recorded right knee flexion to 125 degrees, with objective evidence of painful motion at 105 degrees. It was also noted that the Veteran had full extension of the right knee, to include as due to pain. No additional limitation of motion was observed after repetitive testing. The examiner remarked that functional loss was less movement than normal and pain on movement. The examiner noted that right knee joint stability testing was normal, with no evidence or history of recurrent subluxation/dislocation. The examiner noted that symptoms of a semilunar cartilage condition included frequent episodes of joint pain. Residual signs or symptoms of prior meniscectomy included degenerative changes and medial joint line pain. On VA examination in February 2016, the Veteran reported daily bone on bone grinding, pain almost constantly at varying levels depending on his level of activity. He also reported that he would fall if he did not wear a knee brace. He stated that he was unable to walk more than 100 yards without pain requiring rest. He stated that he could not bend his knee repetitively and could not run at all. The examiner noted that increase in activity causes pain and swelling. The VA examiner recorded right knee flexion to 100 degrees and extension to 0 degrees, to include as due to pain and after repetitive use testing. The examiner noted that symptoms of a semilunar cartilage condition included frequent episodes of joint pain and effusion. Residual signs or symptoms of prior meniscectomy included chronic pain and decreased range of motion. The examiner noted that right knee joint stability testing was normal, with no evidence or history of recurrent subluxation or lateral instability. However, the examiner did find instability on this examination and noted that the Veteran used a brace regularly for arthritis, instability, and anterior cruciate ligament (ACL) and meniscus disruptions. Functional impacts were listed as increased fatigue and pain from prolonged walking, standing, and repetitive stair climbing. An additional VA examination was completed in August 2020. The Veteran reported current symptoms of constant aching pain in this right knee, especially with prolonged standing and walking, and any strenuous activities. He had recurrent right knee swelling with flare-ups involving extreme sharp pain with prolonged walking, standing, or strenuous activities. He also reported difficulty bending and twisting with his right knee, and that he needs to reposition every 20 minutes. The Veteran reported recurrent flare-ups to right knee 1-2 times per month, lasting 2-3 days, moderate to severe intensity of pain/flare up, usually after a strenuous activity involving prolonged walking/standing. He then needed to rest the right knee 2-3 days with ibuprofen. During a flare up, he could not walk more than 50 feet, and could not perform bending or twisting motion with right knee. The August 2020 VA examiner recorded right knee flexion to 100 degrees and extension to 0 degrees, to include as due to pain and after repetitive use testing. The examiner estimated that right knee flexion would be to 100 degrees with repeated use over time, and to 90 degrees during flare-ups. Medial instability of 5-10 millimeters was indicated, accompanied by pain with weight bearing. The Veteran continued to use a knee brace. The examiner stated that there is worsening of the Veteran's symptoms; however, no change in the service-connected diagnoses that have been rendered. The Veteran could not perform prolonged walking and standing. The Veteran was noted to have difficulty with bending and twisting motion of the right knee and needed to change position every 20 minutes. The examiner noted that the Veteran's right meniscus was not viable with regard to its full function of right knee for support and stability. The examiner noted that the Veteran needed to wear right knee brace regularly for stability secondary to medial right knee instability. Without the right knee brace, the right knee would deviate towards the medial aspect, and would be prone to "buckling," and giving out with prolonged walking or standing. The August 2020 VA examiner opined that the Veteran would benefit for with a right knee total replacement, for this would make his right knee stable, and with no constant aching pain with range of motion and weight bearing, and with episodes of flare-ups. This would increase his ability to function normally with activities of daily living. However, it was noted that a total knee replacement was not performed due to the Veteran's age. The August 2020 VA examiner noted that the parking lot into the examination clinic was about 100 yards and the Veteran did not complain or appear to struggle. He further did not complain of any flare ups and or extreme pain to the right knee after walking from the parking lot into the clinic. If the Veteran played indoors with his daughter, there were no foreseen right knee obstacles that would keep him from doing that. The examiner found the Veteran could still be highly functional around the house or at a work environment as long as it is not involving prolonged walking, standing, or repeated squatting, bending, or kneeling of the right knee. Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent for the right knee disability based on limitation of flexion. Throughout the appeal period, the disability has not been productive of limitation of flexion to 15 degrees. Moreover, a separate compensable rating for limitation of extension is not warranted. In this regard, the right knee disability has not been productive of limitation of extension to 10 degrees or more, or the functional equivalent thereof. The evidence reflects limitation of right knee flexion, but not to less than 90 degrees, and no limitation of extension, even when considering factors such as pain and other orthopedic factors, as well as flare-ups and repeated use over time. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, swelling, locking, interference with prolonged walking, interference with standing, and interference with sitting, to include during flare-ups and with repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that she has right knee pain and swelling and is unable to walk or stand for prolonged periods of time would not result in limitation of motion more nearly approximating flexion limited to 15 degrees or less, or extension limited to 10 degrees or more. During the appeal period, the Veteran's right knee instability was rated at 10 percent prior to August 21, 2020 and 20 percent thereafter under diagnostic code 5010-5257. For a rating in excess of 10 percent, the criteria prior to February 7, 2021 required moderate instability. While the Veteran's knee exhibited instability, it was not considered "moderate" during the period prior to August 21, 2020. While the February 2016 VA examination report noted that the Veteran had instability, the examiner noted that joint stability testing was normal, and the Veteran did not otherwise have a history of recurrent subluxation or dislocation. See also October 2012 and September 2014 VA examination reports. As such, a higher rating under Diagnostic Code 5257 is not warranted prior to August 21, 2020. 38 C.F.R. §§ 4.3, 4.7. From August 21, 2020, the Veteran's right knee is rated at 20 percent. A rating in excess of 20 percent requires severe recurrent subluxation or lateral instability under the previous rating criteria, or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker under the February 7, 2021 criteria. While the Veteran has been prescribed a knee brace, he has not been found to have patellar instability, and at no time did he also require a cane or walker. The Veteran's instability is not shown to have been severe during this period. Specifically, during the August 2020 VA examination, the Veteran reported "some instability" in the right knee. The August 2020 examiner noted that the Veteran needed to wear right knee brace regularly for stability secondary to medial right knee instability. Without the right knee brace, the right knee would deviate towards the medial aspect, and would be prone to "buckling," and giving out with prolonged walking or standing. However, after considering the above-referenced impairment and an examination of the Veteran, the examiner assessed that the Veteran's instability was moderate. The evidence does not otherwise show that the Veteran has had severe recurrent subluxation or lateral instability during this period. As such, a disability rating in excess of 20 percent under Diagnostic Code 5257 is not warranted for the Veteran's right knee instability for the period from August 27, 2021. 38 C.F.R. §§ 4.3, 4.7. The Veteran contends that a separate rating is warranted for his torn meniscus. The Board finds that the preponderance of the evidence is against finding the assignment of a separate compensable disability rating under Diagnostic Code 5258 (dislocation of the semilunar cartilage) or Diagnostic Code 5259 (removal of the semilunar cartilage). With respect to a separate rating under Diagnostic Code 5258, the Veteran's right knee meniscus condition has not been productive of frequent episodes of joint, pain, and locking (emphasis added). In this regard, the requirements of Diagnostic Code 5258 are written in the conjunctive, and symptoms of pain, locking, and effusion must be present. The September 2014 VA examiner noted that the Veteran's meniscus condition was productive of frequent episodes of pain, but without episodes of joint locking or joint effusion. Similarly, the February 2016 VA examiner noted that the Veteran's meniscus condition was productive of frequent episodes of pain and effusion, but without frequent episodes of joint locking. Accordingly, a separate rating is not warranted under Diagnostic Code 5258. With regard to Diagnostic Code 5259, the evidence shows that the Veteran underwent surgery for meniscus repair. The September 2014 VA examiner noted that residual signs or symptoms of prior meniscectomy included degenerative changes and medial joint line pain. The February 2016 VA examiner noted that residual signs or symptoms of prior meniscectomy included chronic pain and decreased range of motion. However, pain and limitation of motion have already been considered in the limitation of motion ratings. Thus, a rating under Diagnostic Code 5259 based on the same symptoms is not warranted because it would constitute impermissible pyramiding. Accordingly, a separate rating is not warranted under Diagnostic Code 5258. In conclusion, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent for the right knee based on limitation of flexion, the assignment of a disability rating in excess of 10 percent for right knee instability for the period prior to August 27, 2020, the assignment of a disability rating in excess of 20 percent for right knee instability for the period from August 27, 2020, or a separate compensable rating for the Veteran's right knee meniscus condition. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). However, as the preponderance of the evidence is against the claims, that doctrine does not apply. The appeal of these issues is denied. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran contends that his service-connected disabilities preclude gainful employment. The Board finds, however, there is insufficient evidence upon which to base a TDIU determination, and a remand is necessary. Total disability ratings for compensation may be assigned where the schedular rating is less than total, and the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. 38 C.F.R. § 4.16(a). Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the percentage criteria in 38 C.F.R. § 4.16(a), may receive extraschedular consideration. See 38 C.F.R. § 4.16(b). Specifically, rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). Id. In this case, during the appeal period, the record reflects that the Veteran has worked as an adjunct college professor and a chef and is currently working full time on his PhD. At the October 2012 VA knee conditions examination report, the Veteran reported his right knee condition impacted his ability to work in that he experienced pain and swelling with extended periods of walking, and he cannot run or jog without pain. The examiner noted no limitations on sedentary activities. At the September 2014 VA knee conditions examination, the Veteran reported that he no longer works in construction or as a chef due to knee instability and pain. He was unable to stand all day and would fall due to instability. In an October 2020 statement, the Veteran reported that he has been trained as an executive chef and as a manager in the hospitality industry. He asserted that his service-connected right knee disability renders him unable to obtain and maintain substantially gainful employment in his career fields or in manual labor. In a March 2021 VA psychiatric examination, the Veteran reported that his employment had changed due to the coronavirus pandemic, and that he was working on his PhD. The Veteran has not been provided with the appropriate Veterans Claims Assistance Act of 2000 (VCAA) notice in conjunction with the raised claim for a TDIU. Moreover, while the Veteran meets the percentage rating requirements for a schedular award of a TDIU for the period from October 30, 2020, he does not meet the percentage rating requirements for a schedular award of a TDIU for the period prior to October 30, 2020. 38 C.F.R. § 4.16(a). Upon remand, and after the requested development is completed, the AOJ should refer the TDIU claim for the period prior to October 30, 2020 to the Director of Compensation for consideration under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice of the information and evidence necessary to substantiate a TDIU claim, and perform any development necessary. 2. After the foregoing development has been completed, refer the matter of the Veteran's entitlement to a TDIU for the period prior to October 30, 2020 to the Director of Compensation for consideration under 38 C.F.R. § 4.16(b). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the TDIU claim should be adjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.