Citation Nr: 22016596 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 15-28 869 DATE: March 22, 2022 ORDER Entitlement to an evaluation in excess of 20 percent for right knee instability is denied. Entitlement to an evaluation for right knee arthritis with meniscus tear in excess of 10 percent prior to November 5, 2020, and in excess of 40 percent thereafter is denied. Entitlement to an evaluation for left knee arthritis in excess of 10 percent prior to November 5, 2020, and in excess of 30 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's right knee instability has been moderate but not severe. There is not an unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider has not prescribed both an assistive device and/or bracing for ambulation. 2. Prior to November 5, 2020, the Veteran's right knee disability is not manifest by flexion limited to 45 degrees or less, extension limited to 10 degrees or more, ankylosis of the knee joint, or other impairment of the tibia or fibula. 3. From November 5, 2020, the Veteran's right knee disability is not manifested by limitation of extension of the right leg to no more than 30 degrees of motion, ankylosis of the knee joint, or other impairment of the tibia or fibula or compensable limitation of flexion. 4. Prior to November 5, 2020, the Veteran's left knee disability is not manifest by flexion limited to 45 degrees or less, extension limited to 10 degrees or more, ankylosis of the knee joint, or other impairment of the tibia or fibula. 5. From November 5, 2020, the Veteran's left knee disability is not manifested by limitation of extension of the left leg to no more than 45 degrees of motion, ankylosis of the knee joint, or other impairment of the tibia or fibula or compensable limitation of flexion. 6. Prior to June 7, 2016, there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable because of his service-connected disabilities, and the evidence does not support the Veteran's service-connected disabilities render him unemployable. 7. From June 7, 2016, the competent evidence does not demonstrate that the Veteran's service-connected disabilities alone render him unable to secure or follow a substantially gainful occupation, commensurate with his education and employment background. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 20 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 2. The criteria for an evaluation in excess of 10 percent prior to November 5, 2020, and in excess of 30 percent thereafter, for a right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5010-5261. 3. The criteria for entitlement to an evaluation for a left knee disability in excess of 10 percent prior to November 5, 2020, and in excess of 40 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5261. 4. Referral for extraschedular consideration of a TDIU prior to June 7, 2016, is not appropriate, and the criteria for a TDIU, to include on an extraschedular basis, prior to June 7, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. 5. From June 7, 2016, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1982 to July 1991. This matter comes to the Board of Veterans Appeals (Board) from an appeal of a September 2014 Rating Decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. The Board denied a prior increased rating claim for the knees in June 2013. The Veteran filed an informal claim in October 2013. In November 2018, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ), who has since retired from the Board. The Veteran was offered the opportunity to testify at another hearing with a VLJ, which he declined. The Board previously remanded this case for additional development in March 2019. The matter has now returned to the Board for appellate review. In December 2020, the RO issued a rating decision granting an increase of the evaluation of left knee arthritis from 10 percent disabling to 30 percent disabling from November 5, 2020, and granting an increase of the evaluation of right knee arthritis with meniscus tear from 10 percent disabling to 40 percent disabling from November 5, 2020. The issues remain in appellate status as the maximum schedular rating has not been assigned from the date of claims. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating. That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. 1. Entitlement to an evaluation in excess of 20 percent for right knee instability The Veteran's service-connected right knee instability is currently rated as 20 percent disabling pursuant to Diagnostic Code 5257. The Veteran asserts that a higher evaluation is warranted for the entire period on appeal. Prior to February 7, 2021, under Diagnostic Code 5257, a 10 percent evaluation is warranted for slight symptoms; a 20 percent evaluation is warranted for moderate symptoms; and a 30 percent evaluation is warranted for severe symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2019). The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Prior to the regulatory change, the Rating Schedule did not define "slight," "moderate," or "severe;" however, according to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). 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, which included revisions to Diagnostic Code 5257. 85 Fed. Reg. 230 (Nov. 30, 2020). Under the revised Diagnostic Code 5257, a 20 percent evaluation is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; and a maximum 30 percent evaluation is warranted for 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). If there is patellar instability, 10 percent is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) which does not require a prescription from a medical provider for a brace, cane or walker. 20 percent is available 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. 30 percent will be assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair which requires a prescription by a medical provider for a brace and either a cane or a walker. The following notes to the diagnostic code provide further explanation: Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components which contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Turning to the record, private treatment records from August 2013 showed that the Veteran had normal joint stability after testing bilaterally. Additionally, the private examiner noted that there was no evidence or history of recurrent patellar subluxation and/or dislocation bilaterally. Further private treatment records from August 2013 showed mild to moderate quad atrophy, positive patella compression, and crepitus. Also, the examiner noted a suggested McMurray and an antalgic gait. Next, the Veteran was afforded a VA examination in July 2014 in connection with his claim. At the time of the examination, the examiner noted that joint stability testing was unable to be performed. However, the examiner noted slight recurrent patellar subluxation in the right knee. Diagnostic testing revealed bilateral knee arthritis and right patellar subluxation. In March 2015, another VA examination was conducted in connection with the Veteran's claim. The examiner indicated that joint stability was able to be performed and the testing was normal bilaterally. The Veteran reported the constant use of an assistive device for his knee disability. In November 2018, the Veteran underwent a VA examination, which was later found to be inadequate by the Board's March 2019 remand because the examiner did not provide adequate information regarding the Veteran's claimed flare-ups. However, an estimation of the Veteran's flare-ups does not impact any joint stability testing performed at the time of the examination. Notably, the examiner reported that joint stability testing was unable to be performed because it was too painful for the Veteran. At the November 2018 Board hearing, the Veteran testified that he experienced locking, giving away, a lot of grinding, in his right knee. He further testified that sometimes his knee was so stiff that he could not bend it at all. The Veteran reported that in May 2018, his right knee gave way and he fell, which caused a tear. The Veteran described difficulty standing from sitting if his knees were bent. The Veteran's spouse described that going down the stairs was a challenge for the Veteran due to his knee disabilities. Pursuant to the Board's remand, an additional VA examination was performed in December 2019. Joint instability was indicated bilaterally, but the examiner noted testing was unable to be performed due to painful range of motion. Next, another VA examination was conducted in December 2020. Joint stability testing was performed with normal results bilaterally. The Veteran reported the regular use of a walking stick due to his knee disabilities. Based on above, the Board finds that the evidence of record does not show that the Veteran has severe symptoms of right knee instability or had any right knee ligament tear causing persistent instability, or that a medical provider prescribed any brace and/or assistive devices. In particular, the VA examinations overwhelmingly show that the Veteran demonstrated normal joint stability during testing. Although during the July 2014 and December 2019 VA examinations it was reported that the Veteran could not participate in joint stability testing due to pain, the most recent December 2020 VA examination was performed with normal results bilaterally. Moreover, the objective medical evidence of record indicates that although the Veteran has reported the constant use of an assistive device, no such device has been prescribed for by a medical provider. Consequently, the Veteran's entitlement to an evaluation in excess of 20 percent for right knee instability under Diagnostic Code 5257 prior to and/or after the February 2021 revision is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020 & 2021). The Board has carefully considered the Veteran's reports about instability. English v. Wilke, 30 Vet. App. 347, 352-53 (2018). However, the overall lay and medical evidence indicate that the right knee instability symptoms have varied and do not suggest symptoms more nearly approximating severe. For example, at the December 2020 examination joint testing was normal and the Veteran could walk with a walking stick. Indeed, the Veteran's statements of instability along with some reports of crepitus are consistent with the 20 percent rating assigned, to include the instances where joint stability testing was unable to be performed due to pain. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and joint instability which have been clinically observed and measured in the Veteran's medical records. Additionally, the Board has considered other related or analogous diagnostic codes pertaining to the knee, both pre-revision and as revised, and determined that a higher evaluation is not available for right knee instability under any other diagnostic code. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 20 percent for right knee instability. As the evidence of record persuasively weighs against an increased evaluation for right knee instability, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to an evaluation for right knee arthritis with meniscus tear in excess of 10 percent prior to November 5, 2020, and in excess of 40 percent thereafter 3. Entitlement to an evaluation for left knee arthritis in excess of 10 percent prior to November 5, 2020, and in excess of 30 percent thereafter The Veteran's right knee disability is rated as 10 percent disabling prior November 5, 2020, and at 30 percent disabling thereafter pursuant to Diagnostic Code 5010-5261. Likewise, the Veteran's left knee disability is rated as 10 percent disabling prior to November 5, 2020, and at 40 percent disabling thereafter pursuant to Diagnostic Code 5010-5261. The Veteran seeks a higher evaluation for his service-connected bilateral knee disabilities for the entire period on appeal. At the time the Veteran's claim for an increased rating was filed, he was in receipt of a 10 percent rating for his right and left knee disabilities under Diagnostic Code 5010-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. DC 5010 pertains to arthritis due to trauma substantiated by x-ray findings. DC 5261 pertains to the limitation of extension of the leg. 38 C.F.R. § 4.71a, Diagnostic Code 5010, 5261. As noted above, during the pendency of the appeal, portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, however, Diagnostic Code 5261 was not changed. Under Code 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; 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. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. Other diagnostic codes pertaining to the knee and leg that provide for higher than 10 percent evaluations do not apply in this case, as the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256) or impairment of the tibia and fibula (Diagnostic Code 5262). Prior to November 5, 2020 An August 2013 private examination was provided in support of the Veteran's claim. Range of motion testing revealed flexion limited to 10 degrees and extension limited to 5 degrees for the right knee. Range of motion testing revealed flexion limited to 50 degrees and extension limited to 10 degrees for the left knee. The private examiner indicated that the Veteran had severe symptoms bilaterally. Muscle strength was reported as reduced at the bilateral knee extension. There were no reports of muscle atrophy or ankylosis. However, additional private treatment records from August 2013 indicate that there was quad atrophy. Next, the Veteran was afforded a VA examination in July 2014. At the time of the examination, The Veteran reported that during flare ups he could not bend his knees. Range of motion testing for the right knee revealed flexion limited to 70 degrees, and extension ending at 25 degrees. Range of motion testing for the left knee revealed flexion limited to 55 degrees and extension ending at 15 degrees. Muscle strength testing was normal. There was no sign of muscle atrophy or ankylosis. The examiner noted that the Veteran exhibited pain on palpation during physical examination. Additionally, the examiner noted that the Veteran's perceived mobility while ambulating around the room was greater than what was measured in active and passive range of motion. The Veteran did not show a limp during the short walking exercise. Also, the range of motion of the Veteran's bilateral knees while walking showed better motion angles, the Veteran took several steps consecutively without difficulty making it unclear why the Veteran refused to perform the repetitive range of motion during the range of motion test. In addition, a relative lack of reduction in his described level of pain was noted in these activities compared to what he demonstrated during the formal examination. In March 2015, another VA examination was conducted. Range of motion testing of the right knee 110 degrees. Range of motion testing of the left knee revealed flexion limited to 110 degrees with no limitation of extension. Muscle strength testing was normal bilaterally and there was no evidence of muscle atrophy or ankylosis. In November 2018, another VA examination was conducted. However, that examination was subsequently deemed inadequate for rating purposes by the Board's March 2019 remand. At the November 2018 Board hearing, the Veteran testified that his bilateral knee disabilities had worsened since 2014. In particular, the Veteran described that he experiences locking, giving away, a lot of grinding, in his right knee. He further testified that sometimes his knee is so stiff that he cannot bend it at all. The Veteran explained that he experiences the same symptoms with his left knee. He indicated that he also had stability issues with his left knee. The Veteran's spouse described that going down the stairs is a challenge for the Veteran due to his knee disabilities. Pursuant to the Board's March 2019 remand, the Veteran was afforded an additional VA examination in December 2019. Range of motion testing on the right knee revealed flexion limited to 50 degrees with no limitation of extension. Range of motion testing on the left knee revealed flexion limited to 50 degrees with no limitation of extension. There was no objective evidence of crepitus bilaterally. Muscle strength testing was normal bilaterally. The examiner noted muscle atrophy in the right lower extremity at the right thigh as a result of the Veteran's right knee disabilities. There was no evidence of ankylosis. From November 5, 2020 Another VA examination was performed in November 2020 in connection with the Veteran's claim. The Veteran reported that his knee pain flares up to 9 out of 10 with excessive activity. Range of motion testing for the right knee revealed flexion limited to 90 degrees and extension limited to 30 degrees. Range of motion testing in the left knee revealed flexion limited to 80 degrees and extension limited to 20 degrees. The examiner noted objective evidence of localized tenderness or pain on palpation and crepitus. Muscle strength testing was reduced bilaterally at flexion and extension. There was no evidence of muscle atrophy or ankylosis. Based on a careful review of the subjective and clinical findings, prior to November 5, 2020, the Veteran's service-connected right and left knee disabilities do not warrant a higher than 10 percent evaluation for limitation of motion under Diagnostic Codes 5260 or 5261. In other words, during this period, the clinical findings do not demonstrate that the Veteran's right and left knee disabilities manifested flexion limited to 30 degrees or extension limited to 15 degrees. Although the July 2014 VA examination noted abnormal range of motion at the bilateral knees, the examiner explained that the Veteran exhibited better range of motion with actual motion than during formal examination. Additionally, while the VA examinations during this period do not discuss the level of impairment during flare-ups, the Board will apply the flare-ups reported at the November 2020 to this period. See e.g., Mosley v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 1505; See, e.g., Torres v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 819 (nonprecedential decisions signaling the Court has sanctioned this approach). As such, even considering impairment with flare ups, the Veteran's right and left knee disabilities do not reflect limited to 30 degrees or extension limited to 15 degrees. Although right lower extremity muscle atrophy was noted during this period, a later VA examination explained that muscle atrophy was due ot the Veteran's lumbar spine disorder and not due to the Veteran's bilateral knee disabilities. Furthermore, the Veteran's right and left knee disabilities continued to experience painful motion for this period; therefore, a 10 percent evaluation is still appropriate based on 38 C.F.R. § 4.59, which provides for a minimum compensable evaluation for such painful motion. Thus, the overall objective findings show that, during this period, the Veteran is not entitled to a higher than 10 percent evaluation for his right and left knee disabilities under Diagnostic Codes 5260 or 5261, or on the basis of functional loss. He has compensable limitation of extension with painful motion, but non compensable limitation of flexion for this period. As such a rating over 10 percent for limitation of motion is not warranted. For the period from November 5, 2020, the Board finds that the symptomatology of the Veteran's left knee disability is more nearly approximated by 30 percent rating criteria under the Diagnostic Code 5010-5261 because during this period his limitation of extension was to 20 degrees. A higher evaluation would be warranted if the limitation of extension was 30 degrees or more nor was there compensable limitation of flexion. While the lay statements have been considered, instability for the left knee has not been found upon clinical examination throughout the appeal period. English, 30 Vet. App. at 352-53. Likewise, for the period from November 5, 2020, the Board finds that the symptomatology of the Veteran's right knee disability is more nearly approximated by 40 percent rating criteria under the Diagnostic Code 5010-5261 because during this period his limitation of extension was to 30 degrees. A higher evaluation would be warranted if the limitation of extension was 45 degrees or more nor was there compensable limitation of flexion. The Veteran is in receipt of a separate compensable rating for right knee instability. The Board has also considered whether the Veteran's bilateral knee disabilities resulted in a level of functional loss greater than that already contemplated by the assigned ratings for these periods. DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. Functional loss due to pain is rated at the same level where functional loss is impeded. Stated another way, a range of motion may be possible beyond the point when pain sets in, but for rating the disability, only to the extent pain limits motion is considered. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). While the Veteran complains of pain throughout the range of motion of his bilateral knees, the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion except as discussed above and does not serve as a basis for an evaluation greater than those assigned above. The Board has also considered other diagnostic codes pertaining to the knee and whether a higher evaluation would be appropriately awarded under those codes. There is no evidence the service-connected bilateral knee disabilities described above involved impairment of the tibia and fibula, genu recurvatum, or ankylosis. As such, evaluations under DCs 5256, 5262, and 5263 are not applicable. The Board acknowledges the Veteran's contentions that his service-connected bilateral knee disabilities warrant an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to musculoskeletal disorders, to include a right and left knee disability, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's statements are consistent with the ratings assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran's medical records. Consequently, the Board finds examinations conducted by trained medical professionals are more probative in determining the severity of the Veteran's service-connected bilateral knee disabilities. In sum, the evidence persuasively establishes that the Veteran's service-connected right knee disability warrants no higher than a 10 percent rating for the period prior to November 5, 2020, and no higher than 40 percent thereafter. Equally, the evidence persuasively establishes that the Veteran's service-connected left knee disability warrants no higher than a 10 percent rating for the period prior to November 5, 2020, and no higher than 30 percent thereafter. As such, the reasonable doubt doctrine is not for application. 38 U.S.C. § 5107(b). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that, due to his service-connected disabilities, he has been unemployable since June 2009 and, therefore, he is entitled to a TDIU. Records show that he last worked full time in 2014. He has reported four years of college and occupational experience in the oil industry. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Disabilities affecting a single body system, e.g., orthopedic, will be considered one disability for the purposes of one 60 percent disability or one 40 percent disability. Id. In this case, the Veteran had a 100 percent rating assigned for right knee surgery from November 24, 2014, to February 1, 2015, and from January 10, 2019, to April 1, 2019. He also had a 100 percent rating assigned for left knee surgery from November 24, 2014, to February 1, 2015, and from October 3, 2018, to January 1, 2019. During these periods, entitlement to a TDIU is moot as a result of the 100 percent rating. Prior to June 7, 2016, the Veteran' combined disability evaluation is 60 percent. Notably, for this period, the Veteran is service-connected for right knee arthritis with meniscus tear repair at 10 percent disabling; arthritis left knee at 10 percent disabling; right knee instability at 20 percent disabling; chronic lumbosacral strain with degenerative disc disease at 40 percent disabling. As such, the claim of entitlement to TDIU on a schedular basis must be denied. See 38 C.F.R. § 4.16(a). Where the schedular percentage requirements are not met, entitlement to TDIU benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities; consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The Board has considered whether the Veteran's disability picture prior to June 7, 2016, warrants referral for consideration of an extraschedular evaluation for TDIU. However, the Board finds that a remand for referral of the Veteran's claim for consideration of TDIU is not warranted in this case. In Snider v. McDonough, the CAVC discussed the steps the Board must take to deny referral of an extraschedular TDIU. Pursuant to Ray v. Wilkie, 31 Vet. App. 58 (2019), entitlement to an extraschedular TDIU must be referred to the Director, Compensation Service, for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. When denying extraschedular TDIU referral, the Board must determine both of the following: 1) that a referral is not warranted under the "reasonable possibility" standard; and 2) that TDIU benefits are not warranted because the veteran is not unemployable due to service-connected disabilities. No. 19-6707, 2021 U.S. App. Vet. Claims LEXIS 2050 (Nov. 19, 2021). In his December 2016 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full time in 2010. He claimed to have stopped working full time due to his service-connected left shoulder disabilities in July 2016. The Veteran did not report his employment history over the previous five years. He indicated that he did not leave his last job because of his disabilities. The Veteran reported that he had not tried to obtain employment since becoming too disabled to work. The Veteran reported that he had completed four years of college and that in September 2012 he began a Master of Business Administration (MBA) program. Prior to June 7, 2016, there is insufficient evidence to substantiate the reasonable possibility that the Veteran is unemployable solely because of his service-connected disabilities. Importantly, the evidence shows that the Veteran has the education, skills, work history, and training to perform administrative duties, such as filing or typing, teaching, or date collection. His service-connected disabilities prior to June 7, 2016, were described as affecting the Veteran's ability to stand and to sit for prolonged periods of time. Although the Veteran was not working during this time period, the Veteran, by his own admission, was at one point enrolled full time as a student in pursuit of an advanced degree. The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. at 58. To that end, the Board acknowledges that private treatment records and VA examinations for this period consistently reported that the Veteran would have difficulty with employment requiring significant amounts of standing and/or prolonged periods of sitting due to his service-connected disabilities. However, while the severity of Veteran's service-connected disabilities is reported to potentially require accommodations, no examiner determined that the Veteran was unemployable. Rather, the evidence suggests that the Veteran might be challenged by occupations involving significant physical exertion, it appears as though many of the occupations for which the Veteran has the skills and training are non-strenuous vocations. Based on the totality of the evidence, the Board finds that, prior to March 26, 2015, the Veteran's service-connected disabilities alone did not render him unable to obtain or maintain substantially gainful employment in light of his education, work history, skills, and vocational training such that referral to the Director is warranted for extraschedular consideration. Again, although he was not employed during this timeframe, and it is clear that the Veteran would likely be precluded from engaging in some of his previous occupations (i.e., fuel industry) based on his mobility difficulties, his service-connected disabilities have not been shown to preclude all types of work for which he is qualified based on his education, skills, work history, and training. Indeed, by his own report, during this period the Veteran pursued advanced education. The Board does not doubt that the Veteran's service-connected disabilities caused impairing symptomology prior to June 7, 2016. This impairment of function is recognized by the ratings assigned to each of his service-connected disabilities. The evidence does not, however, support that these disabilities alone precluded substantially gainful employment. In light of the Veteran's past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran was capable of substantially gainful work prior to June 7, 2016. As such, entitlement to TDIU, to include on an extraschedular basis, is not warranted prior to that date For the period from June 7, 2016, the Veteran's combined disability evaluation is 80 percent. Notably, from this period the Veteran is service-connected for right knee arthritis with meniscus tear repair at 10 percent disabling; arthritis left knee at 10 percent disabling; right knee instability at 20 percent disabling; radiculopathy left lower extremity at 20 percent disabling; radiculopathy right lower extremity at 20 percent disabling; chronic lumbosacral strain with degenerative disc disease at 40 percent disabling; and non-compensable evaluations for left knee scar, right knee arthritis with meniscus tear limitation of flexion; left knee arthritis with limitation of flexion; and right knee scar. 38 C.F.R. §§ 4.16, 4.25. In this regard, his combined evaluation is 80 percent from June 7, 2016, with disabilities affecting a single body system combining to a rating of 60 percent. What remains to be determined is whether the Veteran's service-connected disabilities rendered him unemployable. As noted above, for the Veteran to prevail in a claim for TDIU, the evidence must show that the Veteran was unable to pursue a substantially gainful occupation due to his service-connected disabilities. 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 or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In his September 2020 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full time as a fuel driver in September 2014. He claimed to have stopped working full time due to his service-connected disabilities in June 2009. The Veteran reported that he had completed four years of college. The Veteran reported that he had not tried to obtain employment since becoming too disabled to work. In response to a VA request, the Veteran's former employer reported that the Veteran started his employment in June 2014 and ended his employment in September 2014. The employer reported that there were no concessions made to the Veteran by reason of any disability. Additionally, the employer reported that the reason for the termination of employment was due to violation of policy. Further, the employer reported that from June 30, 2014, to September 4, 2014, the Veteran earned a total of $8,959 for full time employment. At the time of his last employment in 2014, the Veteran reported an annual gross income of $38,400. This income exceeded the poverty threshold for 2014. See United States Census Bureau, Poverty Thresholds, available at: https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (Lasted visited February 24, 2022). The Veteran did not have marginal employment under 38 C.F.R. § 4.16(a) because marginal employment is generally deemed to exist when it does not exceed the amount established by the United States Department of Commerce Bureau for the Census. In December 2019, the Veteran was afforded a VA examination for his bilateral knee disabilities. The examiner noted that the Veteran's bilateral knee disabilities impacted his ability to work. Specifically, the examiner noted that the Veteran was unable to work due to bilateral knee pain. In November 2020, the Veteran was afforded a series of VA examination in connection with his service-connected disorders. At the time of the VA examination for the Veteran's service-connected spine disorder, the examiner explained that the Veteran's spine disorder might impact his ability to perform physical labor such as walking or standing, bending/stooping, lifting, squatting, kneeling, pushing or pulling, overhead work. However, the examiner further remarked that the Veteran's spine disability did not impact his ability to perform all aspects of sedentary work, such as answering the phone, typing or computer work, filing, and greeting customers. Next, VA examinations were conducted in November 2020 with respect to the Veteran's service-connected peripheral nerve disability and esophageal disabilities. The examiner noted that the Veteran's peripheral nerve disorders and/or peripheral neuropathy did not impact his ability to work. Likewise, the examiner noted that the Veteran's esophageal disorders did not impact his ability to work. Further, at the November 2020 VA examination for the Veteran's bilateral knee disabilities, the examiner found that the Veteran's bilateral knee disorders may impact his ability to perform physical labor, such as running, jumping, prolonged standing or walking. However, the examiner also noted that the Veteran's bilateral knee disabilities did not impact his ability to perform all aspects of sedentary work such as answering the phone, typing/computer work, filing, and greeting customers. Additionally, a later November 2020 VA addendum opinion clarified the examiner's note about the Veteran's ability to work. Specifically, the examiner explained that with respect to holding an office job, accommodations might need to be made, but the examiner believed the Veteran would be able to do work so long as the Veteran did not have to do any kneeling, squatting, bending, and/or stair climbing. In light of the above, the Board finds that the cumulative effects of the Veteran's service-connected bilateral knee disabilities, spine disability, esophageal disability, and peripheral nerve disabilities did not render him unable to secure or follow a substantially gainful occupation. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The Board has considered what sedentary employment means in this Veteran's case. Withers v. Wilkie, 30 Vet. App. 139 (2018) (Because VA does not define sedentary employment in its regulations for a TDIU, the Board must determine the meaning on a case-by-case basis). Sedentary means doing or requiring much sitting or not physically active. Merriam-Webster's Collegiate Dictionary 1123 (11th ed. 2012). It also means: 1. Sitting habitually; of inactive habits. 2. Pertaining to a sitting posture. Dorland's Illustrated Medical Dictionary, 1687 (32nd ed. 2012). In this case, the Board envisions potential sedentary employment to encompass administrative, instructor, or other forms of employment that would not require the Veteran to spend a significant amount of time on his feet, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks to get up from a sitting position to stretch out his body. The Veteran completed four years of college, as well as some post-graduate work. The Veteran did not report any work history for this period. Nevertheless, the Veteran would be capable of a variety of forms of employment that would generally involve non-physical work with little need for lifting, carrying, bending, or climbing, such as instructor, customer service, or other administrative office functions, as the Veteran's cognitive abilities have not been deemed to be impaired. As such, the Veteran's skills, training, and work history would not preclude such similar sedentary positions. In December 2021, the Veteran's spouse submitted a statement in support of the Veteran's claim. In her statement, the Veteran's spoused reported that a VA medical provider found the Veteran to be totally and permanently disabled, such that he qualified for the student loan discharge program. The Board emphasizes that eligibility for the student loan discharge program is reached under different criteria than those discussed in detail above for TDIU disability benefits from VA. Therefore, the Board does not find this as persuasive evidence of the Veteran's inability to secure substantially gainful employment. Thus, the Board finds that the evidence of record does not support the grant of TDIU. Notably, the competent medical evidence does not support a conclusion that the Veteran's service-connected disabilities alone precluded him from obtaining or maintaining gainful employment during this time. Importantly, the VA examinations of November 2020 reported that while the Veteran's ability to work was impacted by the Veteran's service-connected bilateral knee disabilities and spine disability, these disabilities did not preclude the Veteran from all employment tasks. Moreover, the November 2020 VA addendum opinion clarified that even with the Veteran's service-connected disabilities, the Veteran would still be able to participate in employment. While the December 2019 VA examiner remarked that the Veteran's bilateral knee disabilities impacted the Veteran's employability, later VA examiners determined that the Veteran was not precluded from employment due to his bilateral knee disabilities. Although the Veteran believes that he could not secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran is competent to relate what he personally experiences. However, the record shows he has the skills and abilities to maintain employment. Any probative value of the Veteran's own conclusions is far outweighed by the totality of the evidence that indicates his service-connected disabilities were not productive of impairment that would rise to the level of unemployability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board acknowledges the functional effects of the Veteran's service-connected disabilities as reflected by his overall 90 percent schedular evaluation as of November 5, 2020. The Board also acknowledges the Veteran's reported symptoms of musculoskeletal pain for the period on appeal. However, after considering the totality of the record, the Board finds that the evidence weighs against a finding that the Veteran's service-connected disabilities alone rendered him unable to secure and follow a substantially gainful occupation commensurate with his work and education history. While those disabilities which were service-connected did have functional impairment which affected his ability to work, they did not alone render him unemployable. Therefore, the Veteran is not entitled to a TDIU evaluation. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a TDIU for the period from June 7, 2019. As the evidence of record persuasively weighs against a TDIU for this period, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.