Citation Nr: 21041633 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-59 891 DATE: July 9, 2021 ORDER A rating in excess of 20 percent based on limitation of motion for a service-connected right knee disability is denied. A rating in excess of 20 percent based on instability for a service-connected right knee disability is denied. Throughout the pendency of the appeal, a total disability rating based on individual unemployability (TDIU) due to service-connected bilateral knee disability is granted. FINDINGS OF FACT 1. The Veteran's right knee disability is manifested by painful flexion limited to no less than 30 degrees. 2. The Veteran's right knee disability is productive of moderate instability. 3. Throughout the pendency of the appeal, the Veteran's service-connected bilateral knee disabilities have precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for limitation of flexion of the right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 20 percent for instability of the right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5257. 3. Throughout the pendency of the appeal, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1986 to November 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a September 2015 decision, the RO proposed to reduce the Veteran's rating for right knee meniscal tear, postoperative, rated as 20 percent disabling since December 1, 1999 pursuant to Diagnostic Code 5257. In a March 2016 rating decision, the RO reduced the evaluation under Diagnostic Code 5257 to a noncompensable rating and proposed to reduce the rating for arthritis/degenerative joint disease (DJD), right knee with limitation of motion, status post multiple strains and repair, currently evaluated as 20 percent disabling under Diagnostic Code 5010-5260 since January 14, 2014 and previously rated as 20 percent disabling under Diagnostic Code 5010 from January 13, 2004 to January 14, 2004. In an October 2016 rating decision, the RO restored the Veteran's rating for right knee meniscal tear, postoperative, under Diagnostic Code 5257. The Board finds that this restoration of the rating under Diagnostic Code 5257 constitutes a full award of the benefit sought on appeal with respect to that issue only. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. In a December 2019 decision, the Board restored the Veteran's 20 percent rating for limitation of motion of the right knee and remanded the issues of entitlement to an increased rating for a right knee, currently rated as 20 percent disabling based on limitation of motion and 20 percent disabling based on instability, and entitlement to a TDIU. Increased Ratings Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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. Where the appellant has expressed dissatisfaction with the assignment of a rating, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). 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). 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. See id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Court has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board notes that during the pendency of this appeal, the schedule for rating musculoskeletal disabilities was amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Where, as here, a diagnostic code is amended while a claim is pending, VA is required to consider both versions of the code and apply the version most favorable to the Veteran. The only amendment to a diagnostic code relevant in this matter concerns Diagnostic Code 5257. As explained below, the Board finds the prior version of Diagnostic Code 5257 more favorable to the Veteran. In specific regard to rating disabilities of the knee, precedent opinions of VA's General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 Fed. Reg. 59988 (2004)). Further, in Lyles v. Shulkin, the Court recently held that evaluation of a knee disability under the diagnostic codes for recurrent subluxation or instability; limitation of extension; or limitation of flexion does not preclude as a matter of law a separate evaluation of a meniscal disability under Diagnostic Code 5258 or 5259-the diagnostic codes for removal or dislocation of semilunar cartilage. 29 Vet. App. 107 (2017). Accordingly, in light of the above, when evaluating the Veteran's left knee disability, the Board may assign separate ratings for: (1) recurrent subluxation or lateral instability; (2) limitation of flexion; (3) limitation of extension; and (4) symptoms associated with the dislocation or removal of semilunar cartilage. Lastly, when an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic codes, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. "It is the intention to recognize actually painful... joints due to healed injury as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Generally, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016); 38 C.F.R. § 4.59. By way of history, on January 14, 2014, VA received the Veteran's claim for a TDIU, which the RO also characterized as an increased rating of his service-connected right knee disability. The Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The appeal period before the Board is from January 14, 2013, the date VA received the claim for a TDIU plus the one year look back period. The Board, in consideration of 38 C.F.R. § 3.400(o)(2) and Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), has considered the evidence in the one year prior to the date of receipt of the increased rating claim, but finds that it does not support a finding that the Veteran's disability increased in severity during that one year period. The Veteran's right knee is currently rated as 20 percent disabling based on limitation of motion and 20 percent disabling based on instability, pursuant to Diagnostic Codes 5260 and 5257. The relevant rating criteria are set forth below. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. Diagnostic Code 5257 covers "other impairment of the knee." The Board notes that during the pendency of this appeal, the schedule for rating musculoskeletal disabilities, including Diagnostic Code 5257, was amended, effective February 7, 2012. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Where, as here, a diagnostic code is amended while a claim is pending, VA is required to consider both versions of the code and apply the version most favorable to the Veteran. In this case, there is no relevant evidence post-dating the regulation changes, and as such, the Board will apply the former diagnostic criteria only. The prior version of Diagnostic Code 5257 provides that a 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. Diagnostic Code 5258 provides for assignment of a 20 percent rating with semilunar cartilage dislocated with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71(a). Diagnostic Code 5259 provides for assignment of a 10 percent rating for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71(a). Turning to the relevant evidence, treatment records show that the Veteran has received physical therapy throughout the pendency of the appeal. The Veteran was first prescribed a cane/crutch/walking stick to use as needed in December 2015. The Veteran was afforded a VA knee examination in May 2014. The Veteran reported that he has daily knee flare-ups with prolonged sitting, standing, and bending, with moderate to severe pain. The Veteran stated that this affects his activities of daily living and that he remains mostly sedentary. He has stopped doing yard work, hiking, bowling, and other hobbies due to pain. He self-treats with activity limitation and elevation. He avoids walking more than one hour due to knee flare ups. His knees also flare up with driving, climbing stairs, bending and lifting objects. During range of motion testing, the VA examiner determined that the Veteran's initial right knee flexion was limited to 105 degrees with pain. The Veteran had normal extension. The Veteran's right knee flexion was also limited to 105 degrees with repetitive use testing. The examiner determined that the Veteran had functional loss of the right knee with contributing factors of less movement than normal, pain on movement, and a right-sided antalgic gait. The Veteran had tenderness or pain to palpation for joint line or soft tissue of both knees but normal muscle strength and stability testing. The Veteran did not have a history of recurrent patellar subluxation/dislocation. As for meniscal conditions, the examiner determined that the Veteran had a meniscal condition and meniscectomy of the right knee which resulted in frequent episodes of joint pain, chronic pain, and degenerative joint disease. The Veteran's right knee disability requires regular use of a knee brace. The VA examiner also determined there was no functional impairment of the right knee such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner also explained that, pursuant to Mitchell and DeLuca, pain (but not weakness, fatigability or incoordination) could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time but that he was not able to express any additional functional limitation in degrees of ROM loss because the Veteran was not examined during flare-ups or when the joint was used repeatedly over a period of time. The Veteran was afforded another VA knee examination in September 2015. The VA examiner diagnosed the Veteran with bilateral knee meniscal tear, bilateral knee anterior cruciate ligament tear, bilateral knee joint osteoarthritis, and left knee instability. The VA examiner determined that the Veteran had functional loss of both knees. The Veteran stated that he could no longer due prolonged standing or walking, could not drive more than four hours, could not lift more than 10 to 15 pounds, and had difficulty with stairclimbing and performing household chores and yardwork. During range of motion testing, the VA examiner determined that the Veteran's right knee flexion was limited to 90 degrees, but he had normal extension. The examiner noted that the Veteran had pain with flexion and a significantly diminished ability to flex which limits his ability to bend the knee, to kneel, to squat, and interfered with prolonged walking and standing due to pain. The examiner also noted pain with weightbearing but no objective evidence of crepitus. The examiner determined that the Veteran was able to perform repetitive use testing with no additional functional loss, but stated that he was unable to say without mere speculation as to whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The VA examiner noted additional factors of disability to include less movement than normal and interference with prolonged standing, walking, or with kneeling and squatting. The Veteran had normal muscle strength, no muscle atrophy or ankylosis, and no history of recurrent subluxation, lateral instability, or recurrent effusion. The VA examiner also noted that the Veteran had a meniscal condition (a meniscectomy) with frequent episodes of joint "locking" and joint pain. The VA examiner stated that the Veteran did not use any assistive devices as a normal mode of locomotion. Pursuant to the December 2019 Board remand, the Veteran was afforded another VA examination in December 2020. The VA examiner diagnosed the Veteran with bilateral knee meniscal tear, bilateral knee anterior cruciate ligament tear, and bilateral knee joint osteoarthritis. The Veteran endorsed pain in the right knee all the time, occasional instability, and loss of motion but no swelling or stiffness. The Veteran also stated he was limited in his ability to walk, stand, climb, squat, and kneel. During range of motion testing, the VA examiner determined that the Veteran's right knee flexion was limited to 105 degrees and extension limited to 5 degrees, with passive and active range of motion. The examiner noted pain with flexion and objective evidence of localized tenderness or pain on palpation of the medial and lateral joint lines. The examiner determined there was no evidence of pain with weight bearing or nonweight bearing, or crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. The VA examiner also determined that pain significantly limits functional ability with repeated use over a period of time, but not during flare-ups, and the Veteran's flexion was still limited to 105 degrees and extension limited to 5 degrees. The VA examiner also noted that the examination was medically consistent with the Veteran's statements describing functional loss during flare up and with repetitive use over time. The Veteran had normal muscle strength, no muscle atrophy or ankylosis, and no history of recurrent subluxation, or recurrent effusion. The examiner noted the Veteran had a history of slight lateral instability and a right knee meniscal tear that resulted in frequent episodes of joint pain. The Veteran required constant use of a cane and regular use of a brace. Based on review of the foregoing, the Board finds that the disability picture for the Veteran's right knee disability most closely approximated the criteria for a 20 percent rating for flexion. Examination findings revealed that the Veteran did not have right knee flexion limited to 15 degrees or less, as needed for a rating in excess of 20 percent. As such, even when considering pain on use and during flare ups, the Board finds that a 30 percent rating for limitation of right knee flexion is not warranted. As for Diagnostic Code 5257, the Board acknowledges that the Veteran reported instability and giving away of the knees throughout the pendency of the appeal and that the Veteran is already rated for moderate recurrent subluxation or lateral instability. However, a rating in excess of 20 percent is not warranted as there was no objective evidence of more than slight instability, such that the severity of his instability cannot be found to more closely approximate severe instability. The Board acknowledges the physical examination findings of September 2015 show frequent episodes of joint "locking" and pain of the right knee due to the Veteran's medial meniscal tear. However, such isolated findings are inconsistent with the objective evidence of record throughout the period on appeal, which consistently documents no recurrent effusion, locking, or crepitus of the right knee. Furthermore, the Board also notes that earlier and later VA examinations and VA treatment records throughout the appellate period do not document locking or catching of either knee and only isolated findings of right knee crepitus in December 2015 and March 2016. As such the Board finds that a separate rating for "locking" and effusion of the right knee is not warranted under Diagnostic Codes 5258 or 5259. The Board has also considered whether separate ratings could be assigned for the Veteran's right knee disability under any other applicable diagnostic codes, but the evidence of record does not support awarding separate ratings based on ankyloses, impairment of the tibia and fibula, genu recurvatum, or limitation of extension of the leg, as the foregoing conditions and symptoms were neither objectively documented during examinations and treatment nor described by the Veteran during the claim period. See 38 C.F.R. § 4.71a, DCs 5003, 5256, 5259, 5260, 5261, 5262, 5263; see also VAOPGCPREC 9-04; VAOPGCPREC 23-97. The Board acknowledges that the medical evidence of record indicates that extension of the Veteran's right knee has been limited to 5 degrees at the December 2020 VA examination. However, as the level of such limitation of extension of 5 degrees is noncompensable under Diagnostic Code 5261 and pain was not reported on extension, the Board finds that a compensable rating under Diagnostic Code 5261 is not warranted. See 38 C.F.R. § 4.14. For all of the foregoing reasons, separate or higher ratings are not warranted for the Veteran's right knee disability. In reaching the above conclusions, 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 in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU The Veteran contends that he is entitled to a TDIU based on the impact of his service-connected bilateral knee disability. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in, the following will be considered as one disability: (1) disabilities of one or both upper or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or, (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). For a veteran to prevail on a TDIU claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for the Federal Circuit held that applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Federal Circuit's decision in Geib governs the adjudication of this appeal. See Chisem v. Brown, 8 Vet. App. 374, 375 (1995). As a TDIU claim is a claim for an increased rating, the Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The appeal period before the Board is from January 14, 2013, the date VA received the claim for a TDIU plus the one year look back period. The Board, in consideration of 38 C.F.R. § 3.400(o)(2) and Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), has considered the evidence in the one year prior to the date of receipt of the increased rating claim, but finds that it does not support a finding that the Veteran's disability increased in severity, such as to warrant a TDIU, during that one year period. At the outset, the Veteran meets the criteria for a schedular TDIU rating effective from January 14, 2014, with a singular 60 percent rating for his bilateral knees and a combined 70 percent schedular rating. In his January 2014 VA Form 21-8940 Application for Increased Compensation based on Unemployability, the Veteran reported that his service-connected bilateral knee disability prevented him from securing or following substantially gainful employment since February 2013. The Veteran's highest level of education was three years of college. He last worked in February 2013 as a mail carrier for the United States Postal Service. Turning to relevant evidence, as noted above, the Veteran was afforded VA knee examinations in May 2014 and in September 2015. The May 2014 examination for the right knee disability was an in-person examination. The examiner reviewed the Veteran's medical treatment history, inquired about the effects of the Veteran's knees on ordinary life, and reported that the Veteran would be unable to work in a physical occupation due to his knee condition. His knee condition would not affect his ability to work in a sedentary occupation that allowed him to change positions to accommodate his knee pain. He would not be able to work in a physical occupation due to pain and decreased range of motion. The Veteran had reported that he was placed on light duty at his mail carrier job from 1997 until his retirement in 2013 and continued to have daily knee pain, limited activity due to pain, and flare-ups with walking, driving, bending, and stairclimbing. The examiner also documented flare-ups due to knee pain and indicated that pain affected the Veteran's abilities to perform activities of daily living and he used knee braces regularly. The examiner concluded that the Veteran's right knee pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. During the September 2015 VA knee examination , the VA examiner reviewed the Veteran's medical treatment history, inquired about the effects of the Veteran's right knee on ordinary life, and reported that the Veteran had limited bilateral knee flexion, pain with flexion and weightbearing, and a significantly diminished ability to flex which limited his ability to bend the knee, to kneel, to squat, and interfered with prolonged walking and standing due to pain, all of which contributed to functional loss. The examiner also indicated that the Veteran's bilateral knee limitation of motion impacted his ability to perform any occupational task. The examiner explained that the Veteran obtained disability retirement from the Postal Service in 2013 due to his knee conditions interfering with his duties as a carrier. He kept being assigned alternative duties and eventually there were no more accommodations left and he could no longer function as a carrier. Pursuant to the December 2019 remand, the Veteran was afforded another VA knee examination in December 2020. As discussed above, the VA examiner noted that the Veteran's knee disabilities impacted his ability to perform any occupation task as he was limited in his ability to walk, stand, climb, squat, knee, run, and jump due to knee pain and stiffness. The Board finds that throughout the appellate period, the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected bilateral knee disability. Given the Veteran's level of education, his history of unemployment since 2013, and his level of disability due to his bilateral knee conditions, the Board finds that the effects of this right knee and left knee disabilities make it unlikely that the Veteran could secure or follow a substantially gainful occupation consistent with his educational level and occupational experience. It is unlikely that the Veteran would find a work environment that would allow him to miss multiple days due to his bilateral knee symptoms, exacerbated by prolonged standing or exertion or have reduced duties due to his knee symptoms. This is further emphasized by the fact that the Veteran could no longer perform his job even with accommodations due to his knee symptoms. Specifically, the Board finds that the symptoms described by the Veteran, and noted by the examiners, due to his multiple service-connected disabilities render him unemployable. Accordingly, the Board finds that the competent evidence, when considered as a whole, is at least in equipoise with respect to the issue of whether the Veteran is unemployable due to the effects of his service-connected bilateral knee disability. Therefore, entitlement to a TDIU is granted. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.