Citation Nr: 22017484 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-06 121 DATE: March 25, 2022 ORDER Entitlement to a rating in excess of 10 percent for service-connected residuals of right patella fracture, status post open reduction and internal fixation (ORIF), to include degenerative arthritis, prior to October 29, 2021, is denied. Entitlement to a rating in excess of 30 percent for service-connected right knee limitation of extension, from October 29, 2021, is denied. A compensable rating for service-connected right knee instability, prior to July 9, 2021, is denied. A 10 percent rating for service-connected right knee instability is granted, effective July 9, 2021. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the service-connected left and right knee disabilities is granted, effective October 29, 2021. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected bilateral knee disabilities is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis, prior to October 29, 2021, is remanded. FINDINGS OF FACT 1. Prior to October 29, 2021, the Veteran's right knee extension was normal, and his flexion was limited to no less than 120 degrees, to include as due to pain, repetitive use, and flare-ups. 2. From October 29, 2021, the Veteran's right knee flexion and extension were limited to 110 and 20 degrees during flare-ups, respectively, with no additional impairment due to pain, repetitive use, or during passive range of motion testing. 3. Prior to July 9, 2021, the lay and medical evidence of record does not establish the presence of instability in the right knee joint. 4. From July 9, 2021, the competent and credible evidence of record persuasively establishes that the Veteran has experienced no more than slight symptoms of instability in the right knee joint. 5. Since October 29, 2021, the Veteran has had a single disability rated at least 40 percent disabling and, since that date, he has been rendered unable to obtain or maintain substantially gainful employment consistent with his educational and vocational experience as a result of his service-connected left and right knee disabilities. CONCLUSIONS OF LAW 1. Prior to October 29, 2021, the criteria for a rating in excess of 10 percent for service-connected residuals of right knee patella fracture, status post ORIF, to include degenerative arthritis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003-5260. 2. From October 29, 2021, the criteria for a rating in excess of 30 percent for service-connected right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5261. 3. Prior to July 9, 2021, the criteria for a compensable rating for service-connected right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 4. From July 9, 2021, the criteria for a 10 percent rating for service-connected right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 5. The criteria for entitlement to TDIU have been met since October 29, 2021. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal comes before the Board from rating decisions dated May 2016 (issued in June 2016) and September 2016. In July 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via video conference. A transcript of the hearing is associated with the claims file. This appeal was previously before the Board in September 2021, at which time the claims were remanded for further evidentiary development. All requested development has been conducted and the appeal has been returned to the Board for further consideration. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities ("Rating Schedule"), found in 38 C.F.R. § 4.1. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Separate diagnostic codes identify the various disabilities, and each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.10. When there is a question as to which evaluation should be applied to a Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In the May 2016 rating decision on appeal, the agency of original jurisdiction (AOJ) continued the 10 percent rating assigned for service-connected residuals of right knee patella fracture (which was evaluated under DC 5260-5003) and the noncompensable rating assigned for instability associated with right knee degenerative arthritis (which was evaluated under DC 5003-5257). The Veteran appealed the AOJ's determination as to the ratings assigned for his service-connected right knee disabilities and, during the pendency of the appeal, the AOJ recharacterized the residuals of right knee patella fracture disability as right knee limitation of extension and awarded an increased, 30 percent rating under DC 5003-5261, effective October 29, 2021. See December 2021 rating decision. The Veteran was informed of the AOJ's determination but did not withdraw his appeal. Therefore, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that 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 evaluation assigned, with the additional code shown after the hyphen. See 38 C.F.R. § 4.27. In this case, the evidence shows that the Veteran's right knee disability is manifested by degenerative arthritis, status post open reduction and internal fixation (ORIF) of patella fracture, that variously resulted in painful, limited motion and instability. As such, the AOJ assigned DC 5003 to represent the arthritic changes in the right knee, with DCs 5260 and 5261 assigned to represent the limitation of motion impairment and DC 5257 to represent the instability impairment in the right knee. In evaluating this claim, the Board will consider whether the Veteran's right knee disability warrants a higher rating under all potentially applicable diagnostic codes, including DCs 5003, 5257, 5260, and 5261, from December 9, 2014, which includes the one-year "look back" period prior to the date of receipt of the TDIU/increased rating claim from which this appeal arises. As a final initial matter, the Board notes that 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). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Notably, revisions were made to DC 5257, which evaluates recurrent subluxation or lateral instability. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's right knee instability under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 1. Entitlement to an increased rating for service-connected residuals of right knee patella fracture, status post ORIF, to include degenerative arthritis Turning to the evidence of record, the Board notes that the evidence shows the Veteran's right knee disability is manifested by degenerative arthritis that has resulted in chronic knee pain, limited range of motion, patellofemoral crepitus, and occasional swelling during the appeal period. See e.g., VA treatment records dated November 2015, March 2016, and July 2019. With respect to range of motion, the evidence reflects varying limitations. In this regard, normal ranges of motion of the knee are to zero degrees in extension and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. During VA outpatient treatment in 2015 and 2016, the Veteran demonstrated normal extension to zero degrees, while his flexion was limited to 120 and 130 degrees, respectively. The clinician who evaluated the Veteran in November 2015 specifically noted the Veteran expereinced patellofemoral discomfort while demonstrating range of motion and with compression of the joint. See VA treatment records dated November 2015 and March 2016. During the February 2016 VA examination, the Veteran's range of motion was from zero to 130 degrees and the examiner noted there was no objective evidence of pain, including with weight-bearing. There was evidence of crepitus. The examiner also noted there was no additional functional loss or range of motion after repetitive use testing and further stated that factors such as pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with repeated use over time. The February 2016 VA examiner noted that he/she was unable to state whether such factors significantly limited the Veteran's functional ability during flare-ups without resorting to mere speculation because the Veteran was not examined during a flare-up. This statement is generally deemed inadequate but, in this case, the examination report reflects that the Veteran denied having flare-ups in his right knee at that time. Nevertheless, during the October 2021 VA examination, the reported having flare-ups of intense, sharp, and achy pain across the right patella that occurred two to three times a month. During the exam, the Veteran's right knee extension was limited to 10 degrees and his flexion was limited to 130 degrees, including as due to pain with weight-bearing non-weight-bearing and during passive range of motion testing. After repetitive use testing, his extension was limited to 15 degrees and flexion was limited to 115 degrees, which the examiner noted would be the same limitation caused by pain, fatigability, and lack of endurance after repetitive use over time. However, the examiner opined that the Veteran's pain, fatigability, and lack of endurance would result in additional limitation of motion during flare-ups, with extension limited to 20 degrees and flexion limited to 110 degrees. The foregoing evidence shows that the Veteran has expereinced some degree of limitation of motion in his right knee throughout the appeal period. Under DC 5260, flexion of the leg warrants a noncompensable (zero percent) rating when limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a 30 percent rating when limited to 15 degrees. Under DC 5261, extension of the leg warrants a noncompensable (zero percent) rating when limited to 5 degrees; a 10 percent rating when limited to 10 degrees; a 20 percent rating when limited to 15 degrees; a 30 percent rating when limited to 20 degrees; a 40 percent rating when limited to 30 degrees; and a 50 percent rating when limited to 45 degrees. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code and there is x-ray evidence of degenerative arthritis, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. In this case, the evidence reflects that the Veteran did not demonstrate flexion limited to a degree that would warrant a compensable rating under DC 5260 at any time during the appeal period, as his right knee flexion was limited to no less than 110 degrees during the appeal, including as due to pain, repetitive use, flare-ups and during passive range of motion. The evidence also shows that the Veteran demonstrated normal extension to zero degrees until the October 2021 VA examination, during which his extension was estimated to be limited to 20 degrees during flare-ups. This evidence is consistent with the 10 percent rating assigned under DC 5003-5260 prior to October 29, 2021, and the 30 percent rating assigned under DC 5261 from October 29, 2021. Indeed, while the Veteran's flexion was normal throughout the appeal period and his extension was normal until October 2021, he has demonstrated some degree of limitation of motion in his right knee throughout the appeal period and there has been objective evidence of painful motion throughout. See e.g., November 2015 VA treatment record; October 2021 VA examination report. As such, the 10 percent rating assigned under DC 5003-5260 prior to October 29, 2021, is appropriate. The relevant evidence does not support a finding that the Veteran's right knee flexion or extension warranted a rating in excess of 10 percent prior to October 2021. Nor does the evidence reflect that the right knee disability involved two or more major joints with occasional incapacitating exacerbations to warrant a higher, 20 percent rating under DC 5003 prior to October 29, 2021. Therefore, a rating in excess of 10 percent is not warranted for the right knee arthritis and limited motion prior to October 29, 2021. From October 29, 2021, the evidence shows the Veteran's extension was limited to no more than 20 degrees, which warrants a 30 percent rating under DC 5261. The relevant evidence does not contain any indication or assertion that the Veteran's extension was or would be limited any further as a result of pain, repetitive use, flare-ups or during passive range of motion on or after October 2021. Therefore, a rating in excess of 30 percent warranted under DC 5261 on or after October 29, 2021. In addition to painful, limited motion, the evidence reflects that the Veteran's right knee disability was manifested by patellofemoral crepitus and occasional swelling and stiffness. See e.g., VA treatment records dated November 2015, March 2016, and July 2019; October 2021 VA treatment record. During the October 2021 examination, the Veteran reported that medication helped alleviate his occasional swelling and, in this regard, the Board notes that the rating criteria for evaluating knee disabilities do not contemplate the ameliorative effects of medication. As such, the Board must discount the ameliorative effects of medication when evaluating the right knee disability. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012); McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). However, the relevant evidence does not persuasively establish that the Veteran's swelling, crepitus, or stiffness resulted in any functional impairment or limitation during the appeal period. There is, however, evidence of instability in the right knee joint, which will be discussed below. Based on the foregoing, including after consideration of the Veteran's lay reports of pain, crepitus, swelling, and stiffness, and the objective evidence of functional loss due to limited motion, including during flare-ups or repetitive use testing, the Board finds that a rating in excess of 10 percent rating is not warranted for residuals of the right knee patella fracture, status post ORIF, to include degenerative arthritis, prior to October 29, 2021. The Board also finds that a rating in excess of 30 percent is also not warranted for right knee limitation of extension on or after October 29, 2021. In making these determinations, the evidence is not in approximate balance and, as such, the benefit-of-the-doubt doctrine is not applicable. 2. Entitlement to a compensable rating for service-connected right knee instability As noted, instability of the knee is evaluated under DC 5257. By way of background, the Board notes that the Veteran's right knee disability was initially evaluated under DC 5257. There was objective evidence of instability during a May 2010 VA examination and, as a result, separate ratings were assigned for painful, limited motion due to degenerative arthritis (under DC 5260) and instability (which was characterized as residuals of right patella fracture and evaluated under DC 5257) at that time. See September 2010 rating decision. However, in March 2013, the AOJ decreased the rating assigned for right knee instability to zero percent, effective February 11, 2013, which was continued in the May 2016 rating decision on appeal. The evidence relevant to the current appeal, i.e., the evidence dated from December 2014, contains varying information as to whether the Veteran has experienced instability in the right knee during the appeal period. The medical evidence of record does not reflect any objective findings of instability at any point during the appeal period. For example, the clinician who evaluated the Veteran during outpatient treatment in March 2016 specifically noted there was no evidence of instability in the right knee at that time. The clinicians who conducted the VA examinations in February 2016 and October 2021 also noted there was no history of recurrent subluxation, lateral instability, or patellar instability in the right knee and, notably, all joint stability tests were normal during the VA examinations. The Board notes that the Veteran did not report experiencing any instability or giving way in the right knee during VA outpatient treatment or the VA examinations. However, during the July 2021 Board hearing, he recalled one instance when his knee gave out on him while going up stairs. The Veteran was unable to recall the year that this incident occurred, but he testified that he snapped his Achilles at that time. In this regard, the Board notes that the VA treatment records consistently note that the Veteran tore his right Achilles tendon and had surgical repair during the 1990s. As also noted, the VA treatment records do not otherwise reflect any indications or allegations of giving way or instability in the right knee during the appeal period. See e.g., November 2015 VA treatment record. Therefore, the Board finds that there is no competent evidence of giving way in the right knee during the appeal period. Nevertheless, the Veteran endorsed having a brace for his right knee during the July 2021 Board hearing and during the October 2021 VA examination. See e.g., July 2021 hearing transcript, pp. 11, 14-5; October 2021 VA examination report. While the Veteran testified that he received the knee brace from VA, the VA treatment records do not reflect that the Veteran reported the use of a knee brace during outpatient treatment or that VA clinicians have ordered or otherwise advised him to use a knee brace for his right knee disability. However, the Board notes that the Veteran is competent to report the use of a right knee brace and that the claims file contains VA treatment records dated through only April 2021. Therefore, there is reasonable doubt as to whether the Veteran has been given a brace for his right knee since that time. Neither the Veteran nor the October 2021 VA examiner indicated the approximate date he began experiencing symptoms that required the use of a brace. As such, after resolving reasonable doubt in favor of the Veteran, the Board finds there is competent evidence of instability requiring the use of a brace from July 9, 2021, but no earlier. Indeed, the Veteran's testimony regarding the use of a brace for the right knee is the first lay or medical evidence of record that indicates instability in the right knee. Notably, while the Veteran has reported the use of a brace since July 2021, the evidence only indicates that he regularly uses the brace without any further indication as to the severity or duration of the instability in the knee. Prior to the regulatory change, DC 5257 awarded a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating for moderate recurrent subluxation or lateral instability; and a maximum 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2019). 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. The Court held that objective medical evidence is not required to establish lateral knee instability under the previous version of DC 5257; thus, objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). As of February 7, 2021, under the amended criteria, DC 5257 evaluates recurrent subluxation and instability, as well as patellar instability. For recurrent subluxation or instability, a maximum 30 percent rating is awarded 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. A 20 percent rating is warranted for one of the following: (a) sprain with incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is awarded for a sprain with incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device. For patellar instability, a maximum 30 percent rating is awarded for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace or either a cane or a walker. A 20 percent rating is awarded for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is awarded for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription by a medical provider for a brace, cane, or walker. When considering the relevant evidence under the criteria of DC 5257 prior to February 7, 2021, the Board finds the evidence persuasively establishes that the Veteran's right knee instability was no more than slight since July 2021. In this regard, the Board acknowledges the Veteran's competent report of regularly wearing a brace on his right knee presumably due to instability in the joint. However, the Veteran has not described falling or any other functional limitation due to giving way, dislocation, or instability in the knee with or without the brace, and there is no objective evidence of instability in the anterior, posterior, medial, or lateral aspects of the knee at any time during the appeal period. Therefore, the Board finds the lay and medical evidence persuasively establishes a finding that the Veteran's right knee instability more nearly approximated no more than a slight impairment, which warrants a 10 percent rating under DC 5257 since July 9, 2021, but no earlier. The Board has considered the Veteran's right knee instability under the criteria for DC 5257 in effect from February 7, 2021; however, the amended criteria are not favorable to the Veteran in affording a rating higher than 10 percent at any point during the appeal period. Indeed, while the Veteran has reported that VA has given him a brace for his right knee disability, the relevant evidence does not reflect that he has been diagnosed with a condition involving the patellofemoral complex during the appeal period or that the knee brace was prescribed by a physician. Nor does the lay or medical evidence reflect that his right knee instability is due to a complete ligament tear. See e.g., VA examination reports dated February 2016 and October 2021. Therefore, the Board finds that the amended criteria of DC 5257 do not assist the Veteran in obtaining a rating in excess of 10 percent for right knee instability prior to or after July 9, 2021. Accordingly, the Board finds the lay and medical evidence supports the grant of a 10 percent rating for right knee instability from July 9, 2021, but no earlier. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis, prior to October 29, 2021, is remanded. The Veteran has asserted that he is entitled to a TDIU due to his service-connected left and right knee disabilities. See December 2015 VA Form 21-8940. TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of meeting the schedular criteria for TDIU, disabilities of one or both lower extremities, including the bilateral factor; disabilities resulting from a common etiology or a single accident; or disabilities affecting a single body system are considered as one disability. Id. Therefore, because the Veteran's left and right knee disabilities involve both lower extremities, they are considered one disability, with consideration of the bilateral factor. In this case, the Veteran meets the schedular criteria for a TDIU from October 29, 2021, but no earlier. Indeed, from December 9, 2015, the left total knee arthroplasty disability is rated 30 percent; the residuals of right knee fracture, status post ORIF, to include degenerative arthritis, is rated 10 percent; right knee instability is rated noncompensable (zero percent); and the scars on the left and right knee are also rated noncompensable. As such, his combined rating is 40 percent. From July 9, 2021, right knee instability is rated 10 percent, bringing his combined rating to 50 percent. From October 29, 2021, residuals of right knee fracture, status post ORIF, to include degenerative arthritis is recharacterized as right knee limitation of motion and rated 30 percent disabling, which brings his combined rating to 60 percent. As the Veteran satisfied the criteria for schedular consideration for a TDIU from October 29, 2021, the remaining consideration is whether his service-connected bilateral knee disabilities, alone, are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). In this case, the evidence shows that the Veteran retired from the United States Post Office in May 2015 after working as a custodian/laborer for 31 years. The evidence also shows that the Veteran completed four years of high school and has not obtained any additional education or training. See December 2015 VA Form 21-8940; February 2016 VA Form 21-4192. The evidence dated since October 2021 also suggests that his service-connected right knee disability, alone, would likely prevent him from securing and maintaining substantially gainful employment. The October 2021 VA examiner noted that, because of his right knee disabilities, the Veteran cannot sit, drive, stand, or walk for prolonged periods of time or use stairs, lift certain objects, crouch, or squat without incurring debilitating right knee pain. This assessment is consistent with the Veteran's reports of increased right knee pain, constant stiffness, occasional crepitus, and flare-ups of intense, sharp, and achy pain in the right knee two to three times a month as reflected in the October 2021 VA examination report. As noted, the objective evidence shows limited range of motion of the right knee in both extension and flexion with an additional limitation during repetitive use over time and flare-ups. The evidence dated since July 2021 also shows that the Veteran requires the regular use of a brace for mild instability in his right knee. Notably, the October 2021 VA examination did not include any relevant findings as to the severity of the Veteran's left knee disability; however, the evidence dated prior to October 2021 shows that the Veteran has always reported a more severe impairment in his left knee which included daily pain and stiffness and limited range of motion in extension and flexion. See e.g., October 2015 VA treatment record; February 2016 VA examination report. Therefore, while not clearly indicated in the evidence dated since October 2021, the Board finds that it is likely the Veteran expereinced a significant impairment of functioning due to his left knee disability throughout the appeal period. Indeed, the February 2016 VA examiner confirmed that that the Veteran's left and right knee disabilities would impact his ability to perform prolonged walking, standing, and sitting. The Board finds that the foregoing evidence suggests that, due to his bilateral knee disabilities, the Veteran would be unable to secure or maintain any employment similar to the employment he held prior to retiring in May 2015, including a job that required standing or walking for an extended period of time. The relevant evidence also suggests that his bilateral knee disabilities would significantly limit his ability to secure employment that allowed him to take breaks and sit, as walking, standing, and sitting are all precluded by his right knee disabilities. Therefore, given the Veteran's educational history and extended employment history as a custodian, the Board finds that the foregoing evidence raises a reasonable doubt as to whether his service-connected left and right knee disabilities have rendered him unable to secure or maintain substantial gainful employment since October 29, 2021. As such doubt is resolved in favor of the Veteran, entitlement to a TDIU is granted from October 29, 2021, but no earlier. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected bilateral knee disabilities is remanded. The Veteran has asserted that his current acquired psychiatric disorder began during service in 1978 after he underwent knee surgery. In the alternative, he has asserted that his acquired psychiatric disorder is secondary to his service-connected left and right knee disabilities. In September 2016, a VA physician opined that it is less likely than not that the Veteran's current depressive disorder is secondary to or aggravated by his bilateral knee condition. In this regard, the examiner noted that the Veteran's current psychosocial stressors, including retirement, litigation with his former employer, and interpersonal stressors, appeared to contribute to his current concerns. The examiner stated that the Veteran's medical records show concerns that are consistent with the foregoing statement. The Board acknowledges that the available VA treatment records show that the Veteran reported feeling more depressed after retiring and because of his relationship with his wife, his workers compensation case, and his finances. However, the treatment records also reflect that the Veteran attributed his feeling more depressed and difficulty sleeping to his declining health. In fact, the clinician who evaluated the Veteran in January 2016 specifically noted that some of his depression is reactive to his chronic pain and disability. See e.g., VA treatment records dated November 2015 and January 2016. During the July 2021 hearing, the Veteran also testified that his chronic knee pain and problems resulted in depressive symptoms, such as difficulty sleeping and irritability. See July 2021 hearing transcript, pp. 3-4. Because the September 2016 VA examiner did not address the lay and medical evidence of record that suggests the Veteran's current depression symptoms are at least partially due to or affected by his bilateral knee and other physical disabilities, the Board finds that the September 2016 is inadequate. Therefore, the Board finds a remand is needed to obtain an adequate medical opinion that considers all relevant facts and evidence in this case. 2. Entitlement to a TDIU on an extraschedular basis, prior to October 29, 2021, is remanded. As noted, the Veteran does not meet the schedular criteria for a TDIU prior to October 29, 2021. VA's policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating. The Veteran has stated that he retired early in May 2015 because his body was giving out and he could not be on his feet like that every day anymore. See January 2016 VA treatment record. The February 2016 VA examiner confirmed that that the Veteran's left and right knee disabilities would impact his ability to perform prolonged walking, standing, and sitting. The Board finds that the foregoing evidence suggests that the Veteran's left and right knee disabilities may have prevented him from securing and maintaining substantially gainful employment prior to October 2021. Therefore, this matter must be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating prior to October 29, 2021, as the Veteran does not meet the schedular criteria for a TDIU and the Board cannot grant TDIU under these circumstances in the first instance. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the Veteran's acquired psychiatric disorder. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. The examiner is requested to provide an opinion as to the following: (a) Was the Veteran's current acquired psychiatric disorder caused by his service-connected bilateral knee disabilities, to include any symptoms or manifestations thereof? (b) Is or has the Veteran's current acquired psychiatric disorder (been) aggravated by his service-connected bilateral knee disabilities, to include any symptoms or manifestations thereof? Aggravation means any incremental increase in the severity of the acquired psychiatric disorder without regard to permanence. An opinion must be provided with respect to causation and aggravation. A clear, well-reasoned rationale must be provided for all opinions, with consideration of the lay and medical evidence of record. 2. Refer this case to the Director, Compensation Service, for consideration of assignment of an extra-schedular TDIU, prior to October 29, 2021, under the provisions of 38 C.F.R. § 4.16(b) due to the service-connected left and right knee disabilities. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.