Citation Nr: 22018289 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-17 544 DATE: March 28, 2022 ORDER Entitlement to a rating in excess of 10 percent for service-connected mechanical low back pain (back disability) prior to April 24, 2019, is denied. Entitlement to a rating in excess of 10 percent for service-connected post-operative left anterior cruciate ligament repair (left knee disability) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from January 1, 2020, is granted. Entitlement to a TDIU due to service-connected disabilities, prior to January 1, 2020, is denied. FINDINGS OF FACT 1. Prior to April 24, 2019, the Veteran's back disability he was manifested by pain and forward flexion greater than 85 degrees. 2. The Veteran's post-operative left anterior cruciate ligament repair is manifested by painful motion upon flexion. 3. From January 1, 2020, the evidence is in equipoise as to whether the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. 4. Prior to January 1, 2020, the evidence does not show that the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to April 24, 2019, the criteria for a rating in excess of 10 percent for service-connected mechanical low back pain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2021). 2. The criteria for a rating in excess of 10 percent for post-operative left anterior cruciate ligament repair have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Codes 5259-5260 (2021). 3. From January 1, 2020, the criteria for entitlement to a TDIU been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. 4. Prior to January 1, 2020, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1995 to December 2001. In April 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In September 2019 and June 2020, this appeal was remanded for further development. In a December 2020 correspondence, the Veteran notes that his ability to work has been permanently impacted, in part, due to his left knee and back disabilities. Thus, entitlement to TDIU is considered a part of the Veteran's claims for entitlement to an increased ratings for his left knee and back disabilities. See Rice v. Shinseki, 22 Vet. App. 453 (a TDIU request in which the disability is already service connected is not a separate claim for benefits but rather is part of a claim for increased compensation); 38 C.F.R. § 3.400. Given such, the Board has jurisdiction over these claims, and will be further explained below. I. Increased Rating Applicable Rules and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4. All potentially applicable rating criteria and regulations must be considered. Low Back Disability prior to April 24, 2019 Prior to April 24, 2019, the Veteran's mechanical low back pain is rated at 10 percent under DC 5299-5237. Hyphenated DCs are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38C.F.R. §4.27. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. See 38C.F.R. §4.27. Service connection for mechanical low back pain was initially granted in February 2002 at a noncompensable rating. In August 2012, the Veteran filed a claim for increase for his back disability. In an October 2012 rating decision, the Veteran's rating was increased to 10 percent. Given that compensation already has been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Therefore, the relevant temporal focus for this disability is one year prior to the date of receipt of the claim for increase (August 2012). 38 C.F.R. § 3.400. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38C.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. 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. 38U.S.C. §5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38U.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. However, with respect to the applicable diagnostic codes for the Veteran's back, there has been no change in DC 5237. Factual Background The Veteran was afforded a VA examination in September 2012. See September 2012, VA DBQ Back (Thoracolumbar Spine) Conditions Exam. The VA examiner notes a diagnosis of lumbosacral strain of the spine and arthritis of the spine. The Veteran reports that his back is always hurting. The Veteran reports that he experiences more pain when lifting. The Veteran reports flare-ups of the spine, when lifting. He reports to alleviate pain, he needs bed rest. Range of motion testing reveals the following: forward flexion ends at 80 degrees with painful motion; extension ends at 25 degrees with painful motion; right lateral flexion ends at 25 degrees with no evidence of pain on motion; left lateral flexion ends at 20 degrees with painful motion; right lateral rotation ends at 20 degrees with no evidence of pain on motion; and left lateral rotation ends at 20 degrees with painful motion. The VA examiner notes that the Veteran can perform repetitive use testing with no additional limitations of range of motion. The VA examiner also notes that the Veteran has guarding or muscle spasm of the spine, but it does not result in abnormal gait or spinal contour. There is no muscle atrophy. The VA examiner notes that the Veteran does not have intervertebral disc syndrome (IVDS). In an August 2020 VA medical opinion, the VA examiner notes that he was unable to provide a retrospective opinion. See August 2020, BVA Medical Opinion Disability Benefits Questionnaire. In a July 2021 addendum opinion, in providing a retrospective opinion based on the findings of the September 2012 VA examination report, the VA examiner notes that the Veteran's service-connected back disability did not change prior to April 24, 2019. See July 2021, BVA Medical Opinion. The VA examiner notes that the Veteran reports "no" change in his low back condition to include range of motion and limitation of motion due to pain. Also, the Veteran reports "no" flareups. The VA examiner notes that there is no additional limitation of range of motion for passive range of motion. The VA examiner notes that there is no evidence of pain on passive range of motion. The VA examiner notes that there is no evidence of pain when the joint is used in non-weight-bearing. In a subsequent September 2021 addendum opinion, the examiner clarifies that there is no additional loss of motion after repetitions, no additional functional loss of motion after repetitions, and no additional functional loss due to pain when considering active and passive motion as well as weight-bearing and non-weight bearing in regards to the Veteran's back disability prior to April 24, 2019. See September 2021 Addendum/Clarification Disability Benefits Questionnaire. The VA examiner explains that this finding is consistent with the medical records. For example, the VA examiner cites to an April 6, 2013, VA medical record, which notes the Veteran pulled his hamstring while playing baseball. This evidence shows that the Veteran was active and played sports, which is not consistent with a significant limitation of range of motion. Here, the Board finds that the addendum opinions to the September 2012 VA examination report satisfy the requirements of Correia v. McDonald. 28 Vet. App. 158 (2016). For instance, in the July 2021 and September 2021 addendum opinions, the VA examiner notes that there is no additional limitation of range of motion for passive range of motion. The VA examiner notes there is no evidence of pain on passive range of motion. The VA examiner notes that there is no evidence of pain when the joint is used in non-weight-bearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Furthermore, the Board finds that the addendum opinions to the September 2012 VA examination report comply with Sharp v. Shulkin. 29 Vet. App. 26 (2017). While the Veteran notes flare-ups in September 2012, the August and September 2021 VA examiner clarifies in the retrospective opinions, that the Veteran does not experience flare-ups. The Board notes that the main reason for the addendum opinions were to ascertain further information about flare-ups notes in the September 2012 VA examination report. Thus, the VA examiner determined, based on his interview with the Veteran that he does not experience flare-ups. Turning to the remainder of the evidence, the Veteran's VA medical records reflect chronic low back pain that dates back to 1998. See February 28, 2013, physical therapy treatment plan note. The Veteran also submits a private medical opinion dated March 2020, the Board has considered this evidence to the extent that it depicts the Veteran's disability prior to April 24, 2019. See Independent Medical Examination from P. J. H, MD, received April 2020. The examiner notes that the Veteran's December 2018 MIR shows disc space height end plate with degenerative discopathy, which was increased from his prior examination. The Veteran notes that since his separation from service he experiences back pain. The examiner notes that the Veteran has a yearly flare-up with his back that causes him to rest and stay home from work. Analysis Prior to April 24, 2019, the Veteran's back disability is rated 10 percent under Diagnostic Code (DC) 5237. The Board notes that spine disabilities are rated under the General Rating Formula for Diseases and Injures or under Formula for Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Here, the VA medical evidence reveals that the Veteran does not have IVDS. Thus, a rating for IVDS is not applicable. Under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235-5243), the General Rating Formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis or the entire thoracolumbar spine warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. Id. In the present case, the Veteran's back disability is manifested by, at worst, forward flexion with painful motion limited to 80 degrees, as documented in the September 2012 VA examination report. This satisfies the criteria of a 10 percent rating under DC 5237. A higher rating of 20 is not warranted. The Board notes that the Veteran has not displayed flexion of the thoracolumbar spine of 60 degrees or less at any time, even when considering pain or other functional loss. Also, while the September 2012 VA examiner notes that the Veteran has guarding or muscle spasm of the spine, the examiner notes that it does not result in abnormal gait or spinal contour. Furthermore, a 40 percent rating is not warranted as the Veteran's forward flexion of the thoracolumbar spine is not 30 degrees or less. Moreover, there was no finding of ankylosis of the spine to warrant a 50, or 100 percent disability rating. The Board acknowledges the Veteran's complaints of pain at his examinations; however, the Board finds that any such pain and its effect on the Veteran's low back function is contemplated in the 10 percent rating currently assigned. Significantly, in the September 2021 addendum opinion, the examiner clarifies that there is no additional loss of motion after repetitions, no additional functional loss of motion after repetitions, and no additional functional loss due to pain when considering active and passive motion as well as weight-bearing and non-weight bearing in regards to the Veteran's back disability prior to April 24, 2019. The VA examiner explains that this finding is consistent with the medical records. For example, the VA examiner cites to an April 6, 2013 VA medical record, which notes the Veteran pulled his hamstring while playing baseball. This evidence shows that the Veteran was active and played sports, which is not consistent with a significant limitation of range of motion. The September 2012 VA examiner also notes that the Veteran has guarding or muscle spasm of the spine, but it does not result in abnormal gait or spinal contour. Even considering the Veteran's subjective complaints of pain and stiffness in the lower back, the medical evidence of record did not note any additional limitation of motion demonstrated upon repetitive motion that would support an evaluation in excess of the 10 percent presently assigned. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca v. Brown. 8 Vet. App. 202 (1995). However, an increased evaluation for the Veteran's service-connected back disability is not warranted based on functional loss due to pain or stiffness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. In this regard, the Board observes that the Veteran reports chronic pain on numerous occasions. The Board further observes that the Veteran has reports experiencing functional limitations, to include difficulty squatting, sitting, lifting, or standing for long periods because of his back disability. Despite the Veteran's reports of pain, the September 2021 examiner clarifies that there is no additional loss of motion after repetitions, no additional functional loss of motion after repetitions, and no additional functional loss due to pain when considering active and passive motion as well as weight-bearing and non-weight bearing in regard to the Veteran's back prior to April 24, 2019. As notes above, the rating criteria for a rating of 20 percent disability rating requires a finding of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. While the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. As such, the Board finds that the effect of the pain in the Veteran's thoracolumbar spine is contemplated in the currently assigned 10 percent disability evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Therefore, the Board concludes that an evaluation in excess of 10 percent for the Veteran's back disability is not warranted. The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain and functional limitations. The Veteran is competent to report her symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The evidence of record does not, however, reflect the degree of functional limitation needed for the next higher rating. The Board finds that the most probative evidence consists of those examination reports prepared by trained medical professionals and such evidence demonstrates that the currently assigned ratings are appropriate. Therefore, the Board finds that the probative evidence is against a schedular rating higher than 10 percent for the Veteran's back disability. As the probative evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable, and his claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Left Knee Disability Service connection for post operative left anterior cruciate ligament repair was initially granted in February 2002 at a noncompensable rating under DC 5257. In August 2012, the Veteran filed a claim for increase for his back disability. In an October 2012 rating decision, the Veteran's rating was increased to 10 percent. Given that compensation already has been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Therefore, the relevant temporal focus for this disability is one year prior to the date of receipt of the claim for increase (August 2012). 38 C.F.R. § 3.400. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38C.F.R. §4.71a were amended, effective February 7, 2021. 85 Fed. Reg, 230 (Nov. 30, 2020). 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. 38U.S.C. §5110 (g). With respect to the Veteran's left knee, DC 5257 was amended, but there is no change to DC 5258 through 5261. Because the Veteran's appeal has been pending prior to these amendments, the Board is required to analyze his claim under both versions of 38 C.F.R. § 4.71a , Diagnostic Code 5257, and whatever criteria is more favorable to the Veteran as of February 7, 2021, will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (discussing the effect of changes in law or regulation during the pendency of an appeal). Factual Background Turning to the evidence, in a September 2012 VA examination report for knee conditions, the VA examiner notes a diagnosis of anterior cruciate ligament repair of the left knee. The Veteran notes flare-ups that cause slight swelling with strenuous activity, in which he needs to rest. Range of motion testing revealed the following: left knee flexion is normal (ends at 140 with no limitation for painful motion and left knee extension is normal (ends at 0 degrees with no evidence of painful motion. The VA examiner notes no additional limitation in range of motion with repetitive-use testing. The VA examiner notes no left knee instability, no history of recurrent patellar subluxation or dislocation. There is no recurrent patellar dislocation (shin splits), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The VA examiner notes that the Veteran had left ACL ligament repair during service and residuals are some discomfort and crepitus on full flexion. The VA examiner notes that the Veteran uses braces on occasion. With respect to the September 2012 examination, the Board requested a retrospective opinion to comply with the requirements of Correia and Sharp. In an August 2020 VA medical opinion, the VA examiner notes that he was unable to provide a retrospective opinion. In an August 2021 addendum opinion, the VA examiner notes that the Veteran's service-connected knee disability did not change prior to April 24, 2019. The VA examiner notes that the Veteran reports "no" change in his knee condition to include range of motion and limitation of motion due to pain. Also, the Veteran reports "no" flareups. The VA examiner notes that there is no additional limitation of range of motion for passive range of motion. The VA examiner notes there is no evidence of pain on passive range of motion. The VA examiner notes that there is no evidence of pain when the joint is used in non-weight-bearing. In a subsequent September 2021 addendum opinion, the examiner clarified that there is no additional loss of motion after repetitions, no additional functional loss of motion after repetitions, and no additional functional loss due to pain when considering active and passive motion as well as weight-bearing and non-weight bearing in regards to the Veteran's left knee disability prior to April 24, 2019. The VA examiner explained that this finding is consistent with the medical records. For example, the VA examiner cites to an April 6, 2013 VA medical record, which notes the Veteran pulled is hamstring while playing baseball. This evidence show that the Veteran was active and played sports, which is not consistent with a significant limitation of range of motion. Here, the Board finds that the addendum opinions to the September 2012 VA examination report satisfy the requirements of Correia. Here, in the August 2021 and September 2021 addendum opinions, the VA examiner notes that there is no additional limitation of range of motion for passive range of motion. The VA examiner notes there is no evidence of pain on passive range of motion. The VA examiner notes that there is no evidence of pain when the joint is used in non-weight-bearing. Correia, 28Vet. App.at 168. Furthermore, the Board finds that the addendum opinions to the September 2012 CA examination report comply with Sharp. While the Veteran notes flare-ups in September 2012, the August and September 2021 VA examiner clarified in the retrospective opinions, that the Veteran does not experience flare-ups. The Board notes that the main reason for the addendum opinions were to ascertain further information about flare-ups notes in the September 2012 VA examination report, thus, the VA examiner determined, based on his interview with the Veteran, that he does not experience flareups. Turning to the remainder of the evidence, VA treatment records reflect that the Veteran complains of sharp left knee pain since 1998. See April 2013 VA treatment records. In an April 2019 private knee examination report, the examiner notes patellofemoral pain syndrome of the left knee. The examiner notes flare-ups of the knee, which limit his ability to do squats. Range of motion testing revealed the following: left knee flexion ends at 104 degrees; left knee extension ends at negative 1 degree. The examiner notes pain on motion. The examiner notes localized tenderness or pain to the palpation of joints or soft tissue of the left knee. The examiner notes no additional loss of range of motion with flare-ups or repeated use over a period of time. The examiner notes no history of subluxation or lateral instability. There is no recurrent patellar dislocation (shin splits), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. There is history recurrent effusion. The Veteran has had meniscus tear, with frequent episodes of joint pain and joint effusion. The examiner notes functional impact is the Veteran is limited in his ability to squat, lift, or prolonged standing. The examiner notes pain on weight-bearing and non-weight bearing. However, there is no additional loss of range of motion. During the August 2019 Board hearing, the Veteran testifies that his range of motion of this left knee is diminishing every day. See August 2019 Board hearing transcript, pg. 17. In a February 2020 VA examination report for knee conditions, the VA examiner notes a diagnosis of postoperative left anterior cruciate ligament repair. The Veteran reports that he has popping, pulling sensation, and soreness with cold weather, occasional swelling and shifting of the patellar. The Veteran notes he does not experience flare-ups. The Veteran reports functional loss with prolonged standing, sitting, walking, and stair climbing. Range of motion testing reveals the following: left knee extension ends at 120 degrees with painful motion, and left knee flexion is normal (ends at 0 degrees). The VA examiner notes pain on palpation of the joint or associated soft tissue. There is objective evidence of crepitus. There is no muscle atrophy. There is no ankylosis. There is no history of recurrent subluxation and no left knee instability. There is no recurrent patellar dislocation (shin splits), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The VA examiner notes that the Veteran had a meniscectomy, ACL repair in 1997 and residuals are pain and decreased range of motion. In a March 2020 private medical opinion, the examiner notes that the Veteran tore his ACL while on active duty. He underwent surgery. The examiner notes that the Veteran has recovered well in terms of knee function and stability. But he has an injury to the medial aspect of his knee. If he does too much activity, he has pain. This pain has continued since his original injury. The examiner notes that the Veteran's intermittent pain on his knee causes his knee to buckle and makes his knee give way. Analysis At the onset, the Board notes that while the Veteran's left knee is rated under DC 5257, which is for recurrent subluxation or instability, the medical evidence does not reflect the Veteran has left knee recurrent subluxation or lateral instability. Specifically, in September 2012 and February 2020 examination reports, the VA examiner notes that the Veteran does not have subluxation or instability of the left knee. Given such, a rating under DC 5257 is not appropriate in this case. In the present case, the Veteran's post operative left anterior cruciate ligament repair is manifested by crepitus and pain on full flexion. Thus, DC 5259, which applies to removal of cartilage of the left knee and DC 5260, which applies to limitation of flexion, are more appropriate. As such, a rating under DC 5260-5259 is more appropriate in this case. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy."). As mentioned above, DC 5259 and DC 5260, were not changed under the amended regulations. Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage, there is only a single rating of 10 percent specified: semilunar cartilage, removal of, symptomatic. 38 C.F.R. § 4.71a , Diagnostic Code 5259. Under Diagnostic Code 5260, a non-compensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R.§4.71a , Diagnostic Code 5260. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a , Plate II. Applying the criteria of DC 5259 to the facts of this case, the Board notes that the evidence supports a finding that residuals of the Veteran's ACL repair is symptomatic of pain and limitation of motion upon flexion. Specifically, the September 2012 VA examiner notes that that the Veteran had left ACL ligament repair during service and residuals are some discomfort and crepitus on full flexion. Thus, the criteria for a rating of 10 percent under DC 5259 have been satisfied. The Board notes that a 10 percent rating is the maximum rating under DC 5259. Applying the criteria of DC 5260, the Board notes that throughout the period on appeal, the Veteran's left knee flexion is, at worst limited to 104 degrees at documented in the April 2019 private examination report. Given such, based on the objective range of motion testing alone, a non-compensable rating for limitation of flexion under DC 5260 would be warranted. As here, the lowest rating of 10 percent under DC 5260 requires knee flexion to be limited to 45 degrees. However, because the evidence reflects painful motion upon flexion of the left knee, a 10 percent rating is warranted under 38 C.F.R. § 4.59, which allows for the assignment of the lowest compensable rating for limitation of motion available for a joint if there is acknowledged painful motion, even if the range of motion is not limited to the lowest compensable level under the applicable diagnostic code. A rating in excess of 10 percent under DC 5260 is not warranted, as here the Veteran's left knee flexion is not limited to 30 degrees, as required for a 20 percent rating. Likewise, the maximum 30 percent rating is not warranted under DC 5260 as the Veteran's left knee flexion is not limited to 15 degrees. In sum, for the Veteran's left knee disability under Diagnostic Codes 5259-5260, for the entire period on appeal, the Board finds that a rating in excess of 10 percent is not warranted. Additionally, the Board notes that separate ratings for DC 5259 and DC 5260 is not permissible. This would result in pyramiding, contrary to the provisions of 38 C.F.R. § § 4.14. As such, the Veteran's symptomatology for the removal of the semilunar cartilage provides the same 10 percent rating under Diagnostic Code 5259 as it would under Diagnostic Code 5260 for limitation of flexion with painful motion, but because of the pyramiding rule, that 10 percent rating can only be applied for one rating. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993); see also 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993) (a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity."). The Board has also considered other diagnostic codes. With respect to the Veteran's left disability, as there is no evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum, higher and/or separate ratings under Diagnostic Codes 5256, 5258, 5262, and 5263 are not warranted. Additionally, the Veteran has always exhibited normal left knee extension; thus, a separate rating under DC 5261, for limitation of extension, is not warranted. The Board has carefully considered the Veteran's lay statements with respect to the severity of his knee-related symptoms. The Veteran consistently reports that he suffered from pain in his left knee, which he notes has resulted in functional loss. However, the Board notes that the Veteran's painful motion and pain on use are already contemplated by his assigned rating for the left knee. As the probative evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable, and his claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. II. TDIU Applicable Rules and Regulations A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). 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. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (citing Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Factors to be considered are the veteran's education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015). "Substantially gainful employment" is not currently defined in VA regulations. However, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 (b) as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In other words, the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Analysis Here, the Veteran contends that the last time he worked full time was in January 2020. See December 2020 application for TDIU. From January 1, 2020 Procedural Requirements From January 2020, the Board notes that the minimum schedular requirements are satisfied. The Veteran is in receipt of a 70 percent rating for acquired psychiatric disorder; 40 percent rating for low back pain, 10 percent rating for left knee disability; 10 percent for tinnitus; and non-compensable ratings for left knee scar and right fourth finger fracture. During this period, the Veteran's combined rating is 90 percent. Substantive Requirements The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment. Here, the Board finds that the evidence in equipoise as to whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment. On the Veteran's December 2020 application for increased compensation based on unemployability, the Veteran reports that he last worked full time in January 2020 for a pest control company. His prior experience was for an environmental company from January 2018 to November 2018; as truck driver from 2016 to 2017; and a health technician from June 2014 to October 2015. In February 2020 VA examination report for back, VA examiner notes that the veteran's back condition effects his ability to work, as he will experience moderate pain with prolonged sitting, standing, walking, and bending. This would affect an occupation such as a teacher. In a February 2020 VA examination report for knees, the V VA examiner notes that the veteran's knee disability effects his ability to work, as he will experience moderate pain with standing, walking, stair climbing. This would affect an occupation such as a security police officer. In a February 2020 VA examination report for tinnitus, the VA examiner notes that the Veteran's tinnitus does not affect his ability to work. In June 2020 private medical report, Dr. F.S. opined that the Veteran's mental health disability effects the Veteran's ability to maintain employment. Dr. F.S states that the Veteran does not sleep well, cannot get up on time, cannot concentrate, gets bored with the job, is unable to set realistic goals or make plans independently, is unable to deal with stress of a semi-skilled and skilled work, unable to interact appropriately with the general public, adhere to basic standards of neatness and cleanliness. In a September 2021 VA examination report, the Veteran reports that he has not been employed since January 2020, explaining that his pest control job he held for about one year ended because he could not handle the physical conditions of the job. In a January 2022 addendum opinion, with respect to the Veteran's mental health disability, the VA examiner notes that the Veteran is moderately impaired in working in an environment that involves moving machinery or equipment due to problems with maintaining concentration. The VA examiner notes that the Veteran is moderately impaired in working in an environment that requires frequent interactions with customers. The Veteran is moderately impaired in working in an environment that involves driving due to anxiety. The Veteran is moderately impaired in working in a face-paced environment. In sum, the VA examiner opines although the Veteran's anxiety around other people, irritability, and concentration impairment may make it difficult for him to work around others, he is likely to be able to effectively complete some work/tasks especially when in a solitary situation. The Veteran's physical health imitations are not included in this estimation of his functional impairment and the VA examiner explains, could further decrease the likelihood that he would be employable. Therefore, the Board finds that based on the Veteran's lay statements as to the symptomatology of his service-connected disabilities, coupled with the collective impact of the Veteran's service-connected disabilities, and medical records, which expressly state that works that requirement standing or lifting such as a teacher or police officer, all support a finding that the evidence is in equipoise that that the Veteran was unable to secure and follow a substantially gainful occupation by means of his service-connected disabilities. Here, the Board notes that the Veteran's previous positions have all involved jobs involving lifting, standing, and driving. He does not have experience in a sedentary position or a solitary position. Thus, due to the physical limitations of his knee and back disabilities, as well as to the mental limitations associated with his mental health disability, the evidence does not support a finding that the Veteran has the physical ability to perform the type of activities required by the occupation that he has experience in; or the mental ability to perform the activities required by the occupation he has experience in. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran's favor, entitlement to a TDIU from January 1, 2020 is warranted. Prior to January 1, 2020 For the period prior to January 2020, the Board notes that while the schedular minimum requirements are met, the evidence is against a finding that the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment. Significantly, as discussed above, the evidence reflects, and the Veteran contends, that the Veteran was able to maintain full time employment until January 2020. Thus, the Board finds that, as the Veteran was able to work full time for the pest control company, the evidence supports a finding that the Veteran has the physical ability to perform the type of activities required by his occupation; and has the mental ability to perform the activities required by his occupation. (Continued on the next page) As the probative evidence is against the Veteran's claim for a TDIU prior to January 1, 2020, the benefit-of-the-doubt doctrine is not applicable, and his claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.