Citation Nr: 22008027 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 15-00 226A DATE: February 11, 2022 ORDER 1. A 10 percent (but no higher) rating for the right knee instability is granted from September 22, 2012 to September 4, 2015, subject to the regulations governing payment of monetary awards; entitlement to ratings in excess of 10 percent for right knee arthritis with noncompensable limitation of flexion prior to September 4, 2015 and in excess of 30 percent for right post-total knee replacement (TKR) after November 1, 2016 are denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 3, 2014 and from February 1, 2015 to September 4, 2015 is denied REMANDED 3. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. Throughout from September 20, 2012 to September 4, 2015, the Veteran's right knee disability had been manifested by slight (but not greater) instability. 2. Prior to September 4, 2015, the Veteran's right knee disability has been manifested by arthritis with painful (but less than a compensable degree) limited motion. 3. From November 1, 2016, chronic residuals of the Veteran's right knee TKR consisting of severe painful motion and weakness are not shown; ankylosis, limitation of extension at more than 20 degrees, and nonunion or malunion of tibia or fibula were not shown. 4. From October 2001 to September 4, 2015, the Veteran's service-connected disabilities of posttraumatic stress disorder (PTSD) (rated 30 percent from July 16, 2014 and 70 percent from January 18, 2016); lumbar spine (rated 40 percent from October 1, 2001, 100 percent from September 3, 2014, and 40 percent from February 1, 2015); migraine headaches (rated 30 percent from October 1, 2001); right knee disability (rated 10 percent from October 1, 2011 and 20 percent from September 20, 2012 (based on the grant herein), 100 percent from September 4, 2015, and 30 percent from November 1, 2016); right lower extremity radiculopathy (rated 10 percent from July 16, 2014 and 20 percent from January 18, 2016); tinnitus (rated 10 percent from October 1, 2001); gastroesophageal reflux disease (GERD) (rated 10 percent from October 1, 2001); lichen simplex (rated 10 percent from October 1, 2001); left lower extremity (rated 10 percent since July 16, 2014); and right ear hearing loss (rated 0 percent), were rated 70 percent combined from October 1, 2001, 90 percent combined since July 16, 2014, and 100 percent combined from September 3, 2014, 90 percent from February 1, 2015, and 100 percent from September 4, 2015; were not shown to have been of such nature and severity as to render him unable to maintain regular substantially gainful employment, consistent with his education and experience. CONCLUSION OF LAW A 20 percent (but no higher) rating is warranted for the Veteran's right knee disability from September 20, 2012 to September 4, 2015; a rating in excess of 30 percent from November 1, 2016 is not warranted. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5055, 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1978 to September 2001. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2013 Department of Veterans Affairs (VA) rating decision. The Veteran had requested a videoconference hearing before the Board; on November 1, 2021, he withdrew the hearing request. A February 2016 rating decision awarded a staged increase (100 percent from September 4, 2015 to November 1, 2016 and 30 percent from that date under Code 5055) rating for the right knee disability. Additional evidence (February 2017 VA knee examination) was received subsequent to the February 2016 supplemental statement of the case. An April 2017 rating decision considered this new evidence and continued the 30 percent rating for the right TKR disability. 1. Entitlement to an increase rating for the right knee disability. Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings for distinct periods when varying degrees of disability were shown can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. §§ 3.157, 3.400 (o)(2). Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran, and the claim will be granted on the merits. 38 U.S.C. § 5107 (b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable and the claim will be denied on its merits. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir., Dec. 17, 2021) (en banc). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). As the period under consideration here is from January 2, 2013 (the year prior to the receipt of his claim for an increased rating for his right knee disability) to the present, the Veteran is entitled to a rating under either the prior or the revised (from their effective dates, if more favorable) criteria. See VAGCPREC 3-2000. Initially, the Board notes that there is nothing in the evidence suggesting the right knee disability is manifested by ankylosis, tibia or fibula impairment, or genu recurvatum, so as to warrant ratings under Codes 5256, 5262, or 5263. See 38 C.F.R. § 4.71a. Accordingly, those Codes will not be addressed further. Under Code 5003, degenerative arthritis (established by X-ray findings) is rated based on limitation of motion under the appropriate Codes for the specific joints involved. 38 C.F.R. § 4.71a, Code 5003. When motion of a specific joint is painful, but the limitation of motion found is noncompensable under the appropriate Code, a 10 percent rating is warranted for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Note 1 following Code 5003 provides that a rating under that Code will not be combined with ratings based on actual limitation of motion. 38 C.F.R. § 4.71a. Under the pre-February 7, 2021 Code 5055 (for prosthetic replacement, defined as "total replacement of the joint"), a 100 percent rating is warranted for 1 year following implantation of prosthesis, a 60 percent rating for chronic residuals of severe painful motion or weakness in the joint, and ratings by analogy to Codes 5256, 5261 or 5262 for intermediate degrees of weakness, pain, or limitation of motion (with a 30 percent minimum rating). Under the post-February 7, 2021 Code 5055, a 100 percent rating is to be assigned for 4 months following implantation of prosthesis or resurfacing. For total prosthetic replacement of knee joint only, following expiration of the 4-month period, a 30 percent rating is the minimum rating to be assigned for residuals following a total knee replacement. A 60 percent [maximum schedular] rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Codes 5256 (for ankylosis), 5261 (for limitation of extension), or 5262 (for impairment of the tibia and fibula). Under the pre-February 7, 2021 Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a (maximum) 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Under the post-February 7, 2021 Code 5257, instability of the knee is broken into two categories, (1) recurrent subluxation or instability, and (2) patellar instability. For (1), recurrent subluxation or instability due to sprains or ligament tears causing persistent instability, a 10 percent rating is warranted when there is no prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted when there is a medical provider who prescribes either a brace or an assistive device for ambulation and there is persistent instability from ligament tears or sprains. A 30 percent rating is warranted when there is a prescription from a medical provider for both an assistive device and bracing for ambulation. For (2), patellar instability is defined as a diagnosed condition involving the patellofemoral complex with recurrent instability. The patellofemoral complex for Code 5257 is defined as consisting of the quadriceps tendon, the patella, and the patellar tendon. A note clarifies that a surgical procedure that does not involve repair to at least one of the patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for this Code. For patellar instability, a 10 percent rating is warranted when there is a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted when there is 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 when there is 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. Under Code 5258 , a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under Code 5259, a (maximum) 10 percent rating is warranted for symptomatic residuals of semilunar cartilage removal. Codes 5258 and 5259 are unchanged by the February 7, 2021 regulatory change. Under Code 5260 (unchanged by the February 7, 2021 regulatory change), knee flexion limited to 60 degrees warrants a 0 percent rating, and flexion limited to 45 degrees warrants a 10 percent rating. Higher ratings require a greater limitation of flexion (to 30 degrees for a 20 percent rating and to 15 degrees for a 30 percent rating). Under Code 5261 (also unchanged by the February 7, 2021 regulatory change), knee extension limited at 5 degrees warrants a 0 percent rating, and extension limited at 10 degrees warrants a 10 percent rating. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. Higher ratings require a greater limitation of extension (to 30 degrees for a 40 percent rating and to 45 degrees for a (maximum) 50 percent rating). 38 C.F.R. § 4.71a. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 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). Under governing case law and VA Office of the General Counsel (GC) opinions, separate ratings may be assigned for arthritis with compensable, each, limitations of flexion and extension (or with painful, but less than compensable limited motion), subluxation or instability, and dislocated or symptomatic post-removal semilunar cartilage. See Lyles v. Shulkin, 29 Vet. App. 107 (2017); VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98 (Aug. 14, 1998); VAOPGCPREC 9-04 (Sept. 17, 2004). The Veteran's claim for an increased rating was received January 2, 2013. Accordingly, the relevant period for consideration therefore begins one year prior, on January 2, 2012. A March 20, 2012 private treatment record notes complaints of knee pain and symptoms consistent with osteoarthritis of the knee. On examination, the knees showed tenderness along the medial joint line with no ligamentous instability. Diagnostic testing of the knee showed a little bit of medial joint space narrowing by persistent cartilage and that he has grade II osteoarthritis. September 2012 private treatment records note the Veteran received right knee injections without any significant relief and that his provider advised him that he will need a right TKR given his failure of conservative management. On a September 20, 2012 private disability benefits questionnaire (DBQ) by his private orthopedic physician, range of motion testing was abnormal; flexion to 95 degrees (with painful motion starting at 65 degrees) and extension to 0 degrees were noted. Repetitive use testing did result in additional loss range of flexion motion (to 85 degrees). The provider opined that pain limited functional ability. Muscle strength was 4/5 with right extension and 5/5 for flexion. Joint stability testing was normal. There was no evidence or history of recurrent patellar subluxation/dislocation. It was noted there was a meniscal condition; he had a meniscectomy in the past and has residuals of persistent pain and locking of the right knee status post meniscectomy. Diagnostic testing did find osteoarthritis of both knees. Assistive devices used included a right knee brace occasionally. The provider opined the Veteran's knee impacts his work, noting he has pain, a sensation of instability, and shooting pain in his right knee when he pushes away to get up from his desk. A February 2013 federal treatment record notes complaints of chronic pain, worse with weightbearing, and minor effusion with prolonged walking. On examination, crepitus was observed, flexion was reduced to 120 decrees, there was localized swelling and tenderness to palpitation, the patella femoral grind and McMurray tests were positive, and there was no laxity of the MCL/LCL (the Lachman's test did not show signs of instability). Osteoarthritis of the right knee was diagnosed and he was referred back to his primary care physician for continuity of care or to another provider if he wanted to undergo the TKR. A March 2013 private treatment record notes the Veteran reported right knee pain, limited walking with a one mile tolerance (with some days being worse), and that he would like to hold off on the recommended TKR. On examination, his right flexion was to 115 degrees. In a March 2013 VA knee examination, the Veteran reported episodic symptoms with increasing intensity and frequency of exacerbations as well as flare ups that impacted prolonged walking/standing/sitting, squats, stairs, jogging, jumping, and lifting/carrying. Right lateral compartment arthritis was diagnosed. Range of motion testing was abnormal. On initial testing, flexion to 120 degrees and extension to 0 were noted. Repetitive use testing did not result in additional loss of function or range of motion. The examiner opined that pain and less movement than normal limited functional ability. Muscle strength was 5/5. There was no ankylosis or muscle atrophy. Joint stability testing was normal. There was no evidence or history of recurrent patellar subluxation/dislocation. The examiner noted a history of a right knee meniscal injury and meniscectomy, residual joint line tenderness, and frequent episodes of joint effusion. Assistive devices used included a regular use of a right knee brace. The examiner opined the Veteran's knee impacts his work, noting it limits heavy labor. In a March 2013 statement, the Veteran reported complaints of right knee pain and a feeling of his joint slipping when he steps on uneven terrain. In a May 2013 VA addendum opinion, the provider noted the Veteran had damage to the lateral component with an arthroscopy and chondroplasty during service and now has asymmetric degenerative changes in the lateral compartments. The provider opined that it is at least as likely as not that his current service-connected right knee disability has progressed to degenerative joint disease of the lateral component of the knee. September 2013 private treatment records note he was diagnosed and treated for deep vein thrombosis below the right knee. In an October 2014 VA knee examination, the Veteran reported generalized swelling of the knee; cracking and popping; issues with squatting, kneeling, ascending stairs, and pivoting. In addition, he reported: he had been fitted with a knee brace but does not wear it due to a prior history of deep vein thrombosis; a weakness and giving way as well as catching and locking; constant pain which is aggravated by activity; flare ups, noting he must cease his activity and rest when they occur; and that his right knee disability affects prolonged walking, standing, high impact activities that involve running, cutting, pivoting, and traversing of inclines and on uneven ground. Right meniscal tear and right knee osteoarthritis were diagnosed. Initial flexion to 90 degrees and extension to 0 were noted. The provider noted the limitation of range of motion does not allow for proper weight bearing and pain causes functional loss. There was objective evidence of localized tenderness or pain on palpation as well as crepitus. Repetitive use testing did result in additional loss of function or range of motion, noting flexion was to 90 degrees and extension to 0. The examiner noted that the examination supports the Veteran's statements describing functional loss during flare ups. While he noted pain, fatigue, weakness, and lack of endurance significantly limited functional ability, he was unable to describe the functional loss in terms of range of motion, noting the frequency, severity, and duration of the flare ups were unknown. The examiner noted that the range of motion during a flare up depends on the severity of the episode however no specific degree of limitation could be accurately estimated either orthopedically or scientifically. The examiner opined that pain and less movement than normal limited functional ability. Muscle strength was 5/5. There was no ankylosis or muscle atrophy. Joint stability testing was normal. There was evidence or history of recurrent patellar subluxation/dislocation; the provider noted he has swelling in the knee generally. The examiner noted there was a history of right knee meniscus tear with pain and swelling with limitations of range of motion. The provider noted the Veteran has end stage disease of the knee that will require a TKR and, due to his young age, recommends a TKR be delayed as long as possible. On September 4, 2015, the Veteran underwent a right TKR. On December 2015 VA knee examination, the Veteran reported chronic right knee pain which limited his ambulation, saying it caused him to limp to about 4 blocks. Right knee osteoarthritis and right total arthroplasty were diagnosed. Right flexion to 90 degrees and extension to 0 degrees were noted. Pain was noted on weight and did not result in/cause functional loss. There was objective evidence of localized tenderness or pain on palpation. Repetitive use testing did not result in additional loss of function or range of motion. The provider noted pain significantly limits his functional ability over time. There was no ankylosis or muscle atrophy. The provider indicated that the Veteran's TKR residuals consisted of intermediate degrees of residual weakness, pain, or limitation of motion. In a February 2017 VA examination, the Veteran reported he experienced frequent moderate to severe flare ups of pain and has difficulty with prolonged walking, bending of the right knee, kneeling, squatting, and climbing stairs. He reported he cane for support and stability. On range of motion testing, flexion to 85 degrees and extension to 0 degrees were noted. The provider noted the range of motion contributed to functional loss, noting he is unable to sit in or arise from a low or deep-seated chair due to the limited flexion about his right knee. Pain was noted on active and passive range of motion and did result in/cause functional loss. There was objective evidence of localized tenderness or pain on palpation of the medial and lateral joint line; the provider opined it was moderate. Repetitive use testing did not result in additional loss of function or range of motion. The examiner opined that pain and incoordination significantly limited functional ability with repeated use over time and that pain significantly limited functional ability during flare ups. The provider noted the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during flare ups and opined that flexion was limited to 85 degrees with repeated use over time and during flare ups. The provider opined less movement than normal and swelling contributed to the disability. Muscle strength was 5/5. There was no ankylosis or muscle atrophy. Joint stability testing was normal; there was no evidence or history of recurrent patellar subluxation/ dislocation. A history of a meniscal tear with frequent episodes of joint pain and joint effusion were noted. The provider indicated that the Veteran's TKR residuals consisted of intermediate degrees of residual weakness, pain, or limitation of motion. Diagnostic testing showed normal post-surgical appearance to a right TKR and there was no evidence of loosening. The provider opined that due to his right TKR, the Veteran is unable to bend, kneel, squat, climb ladders, or climb stairs; has difficulty with prolonged walking; and can only perform light physical and sedentary tasks. The Veteran's right knee disability has been rated 10 percent under Code 5259 since the date of service connection until January 1, 2013, 10 percent under Code 5003-5260 from January 1, 2013 until September 4, 2015, 100 percent under Code 5055 from September 4, 2015 until November 1, 2016, and 30 percent under Code 5055 since November 1, 2016. Accordingly, the critical questions before the Board for the period prior to September 4, 2015 are: (1) whether a compensable rating under Code 5257 is warranted; (2) whether a separate rating under Code 5259 is warranted throughout prior to September 4, 2015; (3) whether an increased rating under Code 5260 is warranted; and (4) whether a separate rating under Code 5261 is warranted. From November 1, 2016, the critical question is whether a rating in excess of 30 percent under Code 5055, either under the old or new rating criteria (whichever is more favorable) is warranted. On review of the record, the Board finds that the Veteran's right knee disability, warrants a 20, but no higher, combined rating (based on a formulation of 10 percent under Code 5003-5260 and 10 percent under Code 5257) from September 20, 2012 to September 4, 2015. Regarding the rating under Code 5257, the Board finds that, from September 20, 2012 to September 4, 2015, slight instability was shown. Complaints of the Veteran's right knee giving out, a sensation of instability, and a use of a knee brace are noted (see e.g. September 20, 2012 private DBQ, March 2013 statement, and October 2014 VA examination). English v. Wilkie, 30 Vet. App. 347 (2018). While a use of a knee brace is not consistently noted, his explanation on the October 2014 VA examination for him not wearing the knee brace due to a history of deep vein thrombosis is not implausible and is not inconsistent with his medical history. See September 2013 private treatment records. Resolving reasonable doubt regarding degree of disability in the Veteran's favor (as required, see 38 C.F.R. §.4.3), the Board finds a separate 10 percent rating for slight instability under Code 5257 is warranted throughout the evaluation period prior to his right TKR (from September 20, 2012 to September 4, 2015). 38 C.F.R. §§ 4.3, 4.71a. However, more than slight instability has not been found on any objective, clinical evaluation. Additionally, recurrent patellar subluxation/ dislocation was not found on any objective, clinical evaluation, to include the September 2012 private DBQ, March 2013 and October 2014 VA examinations, or in contemporaneous treatment records. Accordingly, a rating in excess of 20 percent under Code 5257 is not warranted. Regarding the rating under Code 5003-5260 for arthritis with limited flexion, at no time is the Veteran's right knee flexion shown to have been limited to 60 degrees or less (flexion has been found at most limited to 85 degrees even with factors such as pain and use considered). A compensable limitation of flexion is not shown at any time under consideration. While a flexion limited to 85 degrees is not compensable under Code 5260, the rating criteria provides a 10 percent rating, but no more, under Code 5003-5260 based on objective findings of arthritis with non-compensable limitation of flexion, swelling, and satisfactory evidence of painful motion. See 38 C.F.R. § 4.59. The May 2013 and October 2014 VA providers opined that the current right knee osteoarthritis is related and is a progression of his service-connected right knee meniscus disability, noting that the development of osteoarthritic change following a meniscectomy is a well-known and accepted orthopedic principle. Regarding the rating under Code 5261 for limited extension, at no time is there evidence of right knee extension limited at 5 degrees (extension was found normal on the private and VA examinations). Accordingly, a separate compensable rating under Code 5261 is not warranted. For the rating under Code 5259, the Board notes that the Veteran had previously been assigned the maximum (10 percent) rating under Code 5259 (for symptomatic residuals of semilunar cartilage removal) until the disability was recharacterized and rated under Code 5003-5260, effective January 2, 2013, to more-accurately capture the nature of his right knee disability. See Read v Shinseki, 651 F.3d 1296 (Fed. Cir. 2011). While separate ratings might be assigned for arthritis with painful (but less than compensable) limited motion and symptomatic post-removal semilunar cartilage, in this case, separate 10 percent ratings under both Code 5259 and Code 5003-5260 may not be assigned without violating the fundamental principle relating to pyramiding. 38 C.F.R. §§ 4.14, 4.71a. The critical element in permitting the assignment of more than one evaluation under different diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of another condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also VAOPGCPREC 23-97 (July 1, 1997). As the Veteran was awarded a 10 percent rating under Code 5003-5260 under the provisions of 38 C.F.R. § 4.59, a separate rating under Code 5259 would result in impermissible pyramiding due to the assignment of a rating based on joint pain. See Lyles v. Shulkin, 29 Vet. App. 107, 113 (2017). An alternate separate 20 percent rating under Code 5258 is not warranted because the cartilage is not shown to have been dislocated during the evaluation period (but is postoperative) and the evidence does not show frequent episodes of pain, "locking," and effusion into the joint. Symptoms of joint pain are contemplated by other ratings assigned (the rating under Code 5260) and to consider the pain again as a basis for a higher rating under another code, such as 5258, would again violate the rule against pyramiding of 38 C.F.R. § 4.14. From November 1, 2016, the Veteran's post-TKR right knee disability has been rated 30 percent (the minimum post-TKR) under Code 5055 for intermediate degrees of residual weakness, pain, or limitation of motion. The Board finds that at no time from November 1, 2016 is the Veteran's post-TKR right knee disability shown to have been manifested by chronic residuals of severe painful motion or weakness (so as to warrant a 60 percent rating under Code 5055) or by ankylosis, limitation of extension at more than 20 degrees, or malunion or nonunion of tibia and fibula (so as to warrant an intermediate rating under Codes 5256, 5261, or 5262). The February 2017 VA examiner found non-compensable limitation of flexion (flexion has been found at most limited to 85 degrees even with factors such as pain and use is considered) and it was noted that the Veteran's right knee disability caused interference with bending, kneeling, squatting, climbing, and prolonged walking. However, extension was to 0 degrees, muscle strength testing and joint stability testing were normal, and there was no atrophy or ankylosis (and the examiner opined that the total knee replacement residuals consisted of intermediate degrees of residual weakness, pain, or limitation of motion). The Board acknowledges that due to his right knee disability and related pain the Veteran has had to limit his functioning; however, the level of severity and functional impairment shown are encompassed by the 30 percent rating assigned. Accordingly, a rating in excess of the 30 percent schedular rating assigned under Code 5055 is not warranted at any time from November 1, 2016. 2. Entitlement to a TDIU rating prior to September 3, 2014 and from February 1, 2015 to September 4, 2015. The Board has characterized the issue on appeal as entitlement to TDIU prior to September 3, 2014 and from February 1, 2015 to September 4, 2015. The Board made this determination because entitlement to TDIU for other time periods is rendered moot by the assignment of a 100 percent rating from September 3, 2014 to February 1, 2015 and since September 4, 2015 (either based on surgical treatment necessitating convalescence or on a combined schedular rating). As noted above, the Veteran's claim for an increased rating for his right knee disability was received by VA on January 2, 2013. A TDIU claim is part and parcel of an increased rating claim when raised by the record or by the Veteran in connection with the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). In January 2017, VA received a formal application for a TDIU rating, in part based on his right knee disability. Consequently, the evaluation period for consideration here (for the right knee and TDIU) is from January 2012 (a year prior to the January 2, 2013 date of claim). A June 2017 rating decision found entitlement to a TDIU rating moot based on his service-connected disabilities being evaluated as 100 percent disability. However, when a TDIU claim has been raised in connection with an underlying increased rating claim, the Board must address entitlement to a TDIU for the entire period of the underlying increased rating claim. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). A TDIU rating may be assigned when, in the judgement of the rating agency, a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A schedular TDIU rating may be assigned if the Veteran has two or more service-connected disabilities, when at least one is rated at 40 percent or more and the combined evaluation is 70 percent or more, or, if there is only one service-connected disability that is rated at 60 percent or more. 38 C.F.R. § 4.16 (a). Here, from October 2001 to September 4, 2015, the Veteran had service-connected disabilities of: PTSD (rated 30 percent from July 16, 2014 and 70 percent from January 18, 2016); lumbar spine (rated 40 percent from October 1, 2001, 100 percent from September 3, 2014, and 40 percent from February 1, 2015); migraine headaches (rated 30 percent from October 1, 2001); right knee disability (rated 10 percent from October 1, 2011 and 20 percent from September 20, 2012 (based on the grant herein), 100 percent from September 4, 2015, and 30 percent from November 1, 2016); right lower extremity radiculopathy (rated 10 percent from July 16, 2014 and 20 percent from January 18, 2016); tinnitus (rated 10 percent from October 1, 2001); GERD (rated 10 percent from October 1, 2001); lichen simplex (rated 10 percent from October 1, 2001); left lower extremity (rated 10 percent since July 16, 2014); and right ear hearing loss (rated 0 percent). The disabilities were rated 70 percent combined from October 1, 2001, 90 percent combined since July 16, 2014, and 100 percent combined from September 3, 2014, 90 percent from February 1, 2015, and 100 percent from September 4, 2015. The schedular rating requirement for TDIU is met throughout the period on appeal. What remains to be determined is whether the Veteran's service-connected disabilities are of such nature and severity as to have precluded his participation in substantially gainful employment consistent with his education and work experience. In determining whether unemployability exists, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a claim for TDIU, the record must reflect some factor that places the veteran in a different category than other veterans with equal ratings of disability. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In a January 17, 2017 VA Form 21-8940 (TDIU application), the Veteran reported he was unable to work due to in part his right knee disability. He reported that he has two years of college and that he became too disabled to work in July 2015 and worked as a veteran service representative at VA until June 2016. A VA Form 21-4192 by VA (received February 2017) notes the Veteran worked full time for VA since 2007, was pending disability retirement approval, and he last worked on June 30, 2016. The evidence is persuasively against a finding that the Veteran's service-connected disabilities have rendered him incapable of maintaining regular substantially gainful occupation consistent with his education and work experience between January 2012 and September 3, 2014 and from February 1, 2015 to September 4, 2015. Notably, he was, in fact, employed full-time by VA beginning in 2007 but left that position in 2016 (due to disability retirement approval when he was already in receipt of a 100 percent combined rating). Given the fact he was substantially employed from 2007 to 2016, the Board is unable to find that due to his service-connected disabilities he would not have been able to participate in types of employment consistent with his level of education, special training, and previous work experience. The mere fact that the service-connected disabilities have an impact on employment is insufficient to find him unemployable due to service-connected disabilities. In summary, the physical and mental limitations due to his service-connected disabilities from January 2012 to September 2014 and from February 1, 2015 to September 4, 2015 are not shown to be such as to prevent the Veteran from maintaining any regular substantially gainful employment consistent with his education and occupational experience. Van Hoose, 4 Vet. App. at 363. The evidence is persuasively against the claim and the benefit of the doubt doctrine is inapplicable. Accordingly, the appeal in this matter must be denied. REASONS FOR REMAND 3. Entitlement to service connection for a left knee disability. The Veteran alleges his left knee disability is related to his service-connected right knee disability. In a March 2013 VA examination, left mild patella femoral arthritis was diagnosed. The examiner opined that the Veteran's residual right knee strength, range of motion, stability, alignment, and gait pattern were too functional to cause or aggravate a degenerative process in the Veteran's left knee. However, since the March 2013 VA examination, there have been three notable changes. First, an October 2014 VA knee examination found the right knee limitation of motion itself does not allow for proper weight bearing. Second, in September 2015, the Veteran underwent a right total knee replacement. Third, a February 2016 rating decision increased the rating for the right knee disability (based on the right TKR and its residuals). Accordingly, the right knee disability is assumed to be more severe than found on the March 2013 examination. Moreover, in a March 2013 private treatment record, his provider assessed the lumbar spine and opined soft tissue pain was mechanical due to the way the Veteran walks with a limp to compensate for an arthritic knee. A contemporaneous examination to assess the nature and likely etiology of the left knee disability is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997) The matter is REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations and treatment he has received for his left knee disability (and to complete and submit a VA Form 21-4142 authorizing VA to secure for the record complete clinical records of all private such evaluations and treatment). Secure for the record complete (all outstanding) clinical records of the evaluations and treatment from all providers identified. If any private records identified are not received pursuant to VA's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private medical records are received. Secure for the record updated (to the present, all outstanding) complete clinical records of VA evaluations and treatment the Veteran has received for the left knee disability. 2. Then, arrange for the Veteran to be examined by an appropriate clinician to determine the nature and likely etiology of his left knee disability. The Veteran's record must be reviewed by the examiner in conjunction with the examination. The examiner should: (a.) Identify by diagnosis each left knee disability found on examination or shown by the record during the pendency of the appeal. (b.) Identify the likely etiology for each left knee disability diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that the disability was caused or aggravated by (increased in severity due to) the Veteran's service-connected right knee or back disabilities. [The opinion must address aggravation.] (c.) If it is found that his service-connected right knee or back disability did not cause, but aggravated, the Veteran's left knee disability, specify, to the extent possible, the degree of disability (symptoms and/or impairment) that resulted from such aggravation. (d.) If a diagnosed left knee disability is determined to not have been caused or aggravated by the service-connected right knee or back disability, identify the etiology for the left knee considered to be more likely (and explain why that is so). All opinions must include rationale. If the examiner cannot provide a requested opinion without resort to mere speculation, it must be so stated, with explanation why an opinion would require speculation (e.g., whether further information or testing necessary was needed, to make a determination; or whether the opinion could not be rendered due to limitations in the knowledge of the medical community at large or of the particular examiner). S. CHARLES NEILL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.