Citation Nr: 22019745 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 15-23 404 DATE: April 2, 2022 ORDER Entitlement to a disability rating greater than 10 percent for right knee osteoarthritis with cartilage degeneration (right knee condition) is denied. Entitlement to a separate disability rating of 10 percent, but no higher, for right knee instability from October 1, 2018 to January 24, 2022 is granted. Entitlement to a disability rating greater than 10 percent for right knee instability from January 25, 2022 is denied. REMANDED Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right knee condition exhibited painful, decreased range of motion but was not manifested by limitation of extension to 15 degrees or more, or limitation of flexion to 45 degrees or less. 2. From October 1, 2018, the Veteran's right knee condition was manifested by slight instability. It was not manifested by moderate or severe instability, a diagnosed sprain or ligament tear, or a diagnosed condition of the patellofemoral complex requiring a medically prescribed assistive device or brace. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for a right knee condition are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003-5261 (2020) (2021). 2. The criteria for a separate disability rating of 10 percent, but no higher, for right knee instability from October 1, 2018 to January 24, 2022 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257 (2020) (2021). 3. The criteria for a disability rating greater than 10 percent for right knee instability from January 25, 2022 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257 (2020) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to July 1973. He appeals a February 2014 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to a rating greater than 10 percent for his right knee condition. A Board of Veterans' Appeals (Board) hearing was held in October 2018. A transcript is of record. Pursuant to the Veteran's testimony that his right knee condition had worsened, the Board remanded in February 2019 for further development. The Board remanded two more times, most recently in October 2021 for a reviewing clinician to adequately address the Veteran's right knee flareups, especially during weather changes. After this development, the AOJ granted a separate rating of 10 percent for right knee instability from January 25, 2022. See January 2022 rating decision. Additionally, during the appeal period, the Board found the issue of entitlement to TDIU had been raised. See November 2020 Board remand. The Veteran's claim is now back before the Board. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). As a preliminary matter, the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. Here, the rating criteria for the knee had changes made to DCs 5257 and 5262. Thus, both the old and new rating criteria for these diagnostic codes will be analyzed below for the Veteran's ratings from February 7, 2021. Knee disabilities are generally rated under diagnostic codes 5256 through 5263 of 38 C.F.R. § 4.71a. DC 5256 addresses ankylosis of the knee. DC 5257 addresses recurrent subluxation or lateral instability. DC 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of "locking," pain, and effusion into the joint. DC 5259 addresses symptomatic residuals related to removal of semilunar cartilage. DC 5260 addresses limitation of motion on flexion while DC 5261 addresses limitation of motion on extension. DC 5262 addresses impairment of the tibia and fibula from malunion or nonunion. DC 5263 addresses genu recurvatum. The Board must consider the Veteran's service-connected right knee condition under each diagnostic code and apply the appropriate ratings without having any of the symptomatology be duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran cannot receive compensation under two different codes for the same manifestations of symptoms as this would constitute impermissible pyramiding under 38 C.F.R. § 4.14. A. Limitation of Motion The Veteran's right knee condition is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5003-5261, based on demonstrated pain with movement. See August 2012 rating decision. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5003 provides the criteria for rating disabilities that are due to degenerative arthritis. In instances where the loss of motion is non-compensable under the appropriate diagnostic code, a rating of 10 percent is assigned for each major joint or group of minor joints affected by the loss of motion. In the absence of any loss of motion, a 20 percent disability rating is assigned where there is x-ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003. Knees are considered major joints for rating purposes. See 38 C.F.R. § 4.45. Under this diagnostic code, the Veteran would not be entitled to a rating greater than 10 percent as the right knee is only one major joint. Thus, the Board must analyze the Veteran's right knee range of motion under DCs 5260 and 5261, which did not change with the new rating criteria. As stated above, limitation of motion is addressed under DCs 5261 and 5260. DC 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. See 38 C.F.R. § 4.71a. Similarly, under DC 5260, a 10 percent disability rating is assigned where flexion of the leg is limited to 45 degrees. Id. A 20 percent disability rating is in order where leg flexion is limited to 30 degrees. Id. A maximum schedular 30 percent disability rating is assigned where leg flexion is limited to 15 degrees. Id. For reference, normal range of motion for the knee is defined under the regulations as consisting of extension to zero degrees and flexion to 140 degrees. See 38 C.F.R. § 4.71, Plate II. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, or flare-ups is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. This includes any functional loss resulting in the equivalent of ankylosis during flareups or with repeated use over time. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors such as decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement. Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Additionally, when there is evidence of painful motion, 38 C.F.R. § 4.59 operates to provide at least the minimum compensable rating available under the appropriate diagnostic code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). The AOJ rated the Veteran's right knee under DC 5261, limitation of extension, so the Board will discuss this first. Throughout the entire appeal period, the Veteran either had full extension of his right knee or extension limited to 5 degrees. See, e.g., November 2011 VA treatment records (full range of motion); December 2012 Randolph Orthopedics records (full extension); May 2012 and 2013 VA treatment records (full extension); April 2015 VA treatment records (extension to 5 degrees); February 2018 Randolph Orthopedics records (extension to 5 degrees); March 2020 and March 2021 VA treatment records (extension to 5 degrees). Under DC 5261, this is limitation of extension does not warrant a compensable rating as a compensable rating requires extension limited to 10 degrees or more. Under DC 5260, the Veteran would not be entitled to a compensable rating unless his right knee flexion was limited to 45 degrees or less. During the appeal period, the Veteran's right knee flexion had a wide range of motion. See, e.g., November 2011 and December 2012 VA treatment records (full flexion); May 2013 and April 2015 VA treatment records (flexion to 120 degrees); February 2018 Randolph Orthopedics records (flexion limited to 100 degrees); February 2021 and January 2022 VA examination reports (flexion limited to 115 degrees); June 2021 VA examination report (flexion limited to 95 degrees). At its most severely limited motion, an October 2019 VA examiner recorded his flexion to 90 degrees. As such, the Veteran's right knee condition would not be compensable for VA benefits under DC 5260 or 5261 as a compensable rating requires either flexion limited to 45 degrees or less, or, extension limited to 10 degrees or more. However, when there is evidence of painful motion, 38 C.F.R. § 4.59 operates to provide at least the minimum compensable rating available under the diagnostic code for the painful joint. See Sowers, 27 Vet. App. at 478. Here, the Veteran is already in receipt of the minimum compensable rating of 10 percent under DC 5261 due to painful motion. Id. Thus, the Veteran would only be entitled to a higher rating if his right knee's flexion was limited to 45 degrees or less, or extension was limited to 15 degrees or more. For this, the Board must also consider whether a higher rating is warranted based on any additional functional loss due to pain, weakness, fatigability, or incoordination during flare-ups or with repeated use over time that results in the equivalent flexion limited to 45 degrees or less or extension limited to 15 degrees or more. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017); DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.59. Generally, the Veteran reported to suffer from flareups during the entire appeal period, which occurred as frequently as daily, lasted anywhere from hours to the whole day, and were often caused by "being still, like riding in a car [for a prolonged period] or trying to sleep," or standing for a long time. See May 2012 and January 2022 VA examination reports; October 2018 Board Hr. Tr. at 10. The Veteran also noted his right knee pain increases "during cold and rainy weather." Id. After his knee is idle for a while, the Veteran stated he can loosen up the stiffness "once he gets to moving around, but after repeated use, the stiffness starts again." See January 2022 VA examination report. The Board finds the Veteran's statements of flareups and functional loss with repeated use over time credible when weighed against the evidence. The October 2019 and June 2021 VA examiners inaccurately stated the Veteran did not suffer from right knee flareups. Additionally, although the May 2012 and February 2014 examiners discussed the Veteran's flareup symptoms, they did not estimate the potential loss of motion or function of the right knee during flareups; thus, in this regard only, these four VA examinations are not probative. See Sharp, 29 Vet. App. at 35. The June 2021 VA examination report reflects the Veteran's right knee was being examined immediately after repeated use over time and it was noted increased pain caused the additional functional loss of the Veteran's limited flexion to 95 degrees, the second most restricted movement of record. In February 2021, the Veteran stated he had two to three flareups a week and the examiner estimated the Veteran suffered from additional functional loss due to pain, weakness, fatigability, lack of endurance, and incoordination that resulted in flexion limited to 110 degrees, a loss of 5 degrees of flexion during flareups and after repeated use over time. In January 2022, the examiner found the Veteran's flexion increased from 115 degrees active motion to 125 degrees during passive motion, and estimated any right knee additional functional loss due to pain, weakness, fatigability, lack of endurance, and incoordination resulted in a decrease of flexion to 110 with repeated use over time, and flexion limited to 105 degrees during flareups. This reflects, at most, an estimated 20 degree decrease in the Veteran's flexion on passive motion during flareups. Of note, no VA examiner of record estimated the Veteran would suffer additional loss of extension during flareups or with repeated use and the Veteran has not reported otherwise. The Board finds the February 2021 and January 2022 VA examination reports consistent when compared with the record. Although most VA examinations and treatment records do not properly estimate a decreased range of motion during flareups and with repeated use, the estimated 20 degree decrease by the January 2022 VA examiner can be used across all other recorded ranges of motion in the record. With this, the Veteran's range of motion on any examination or medical record would still not reflect flexion limited to 45 degrees or less or extension to 10 degrees or more, even during flareups or with repeated use over time. For entitlement to a rating greater than 10 percent, the Veteran would need to exhibit flexion limited to 45 degrees or less, or extension limited to 10 degrees or more and the record does not reflect his right knee exhibited this severity of decreased motion, even during reported flare-ups and repeated use over time during the appeal period. The Veteran is also not entitled to a separate rating under DC 5260 for painful motion. The predicate element in assigning several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban, 6 Vet. App. at 261-62. Assigning a separate rating under DC 5260 based on painful motion would violate the rules prohibiting pyramiding as it would compensate the Veteran twice for the same symptomatology, limitation of motion due to pain. 38 C.F.R. § 4.14. The Board notes the Veteran received right knee injections to assist with his pain levels "about every four months" during years of the appeal period. See October 2018 Board Hr. Tr. at 5. The Veteran and his wife testified that these injections improve his right knee symptoms, including his range of motion, to varying degrees and duration. Id. at 6-7. The Board has noted the Veteran's injections in the record, and it appears he received no right knee injection before any VA examination, with the exception of a September 2019 injection provided the month before his October 2019 VA examination. See, e.g., September 2014, March 2021, and September 2021 VA treatment records. Thus, the VA examinations of record provide adequate estimations of the Veteran's symptoms and loss of right knee function throughout the appeal period, which the Board finds probative. Overall, based on the entire record, the Board concludes the Veteran's functional loss due during flare-ups and with repetitive use does not warrant a greater disability rating for his right knee condition. See Mitchell, 25 Vet. App. at 42-43. While his knee symptoms include chronic pain, flareups with increased pain, swelling, stiffness, weakness and functional loss, his symptom picture more closely approximates his current 10 percent rating under DC 5261 for painful motion. Also, the Veteran is not entitled to a compensable rating under DC 5260 as his knee symptoms of pain and any functional loss due to pain, fatigue, weakness, and lack of endurance are fully addressed under DC 5261. See Sowers, 27 Vet. App. at 478. Thus, the Board denies a disability rating greater than 10 percent for his right knee condition under DC 5003-5261. B. Instability As noted above, the rating criteria under DC 5257 changed on February 7, 2021. As such, the Board must consider the Veteran's instability under both the new and old rating criteria from February 7, 2021. Under the new rating criteria for a recurrent subluxation of instability of the knee, a 10 percent rating is warranted for a sprain, 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. See 38 C.F.R. § 4.71a, DC 5257. A 20 percent rating 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. Id. Finally, a 30 percent rating is warranted for a disability manifest as 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. Id. For patellar instability of the knee, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Id. A 20 percent rating is warranted 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. Id. And a 30 percent rating is applied 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 and either a cane or a walker. Id. Here, the Veteran is service connected for right knee osteoarthritis with cartilage degeneration and x-ray imaging reflects degeneration of the patellofemoral joint. See February 2018 Randolph Orthopedics records. From February 7, 2021, the record also reflects recurrent instability. Thus, the Veteran is entitled to a separate 10 percent disability rating under the new rating criteria for right knee instability from February 7, 2021. However, the record does not reflect evidence of surgical repair that required a medically prescribed assistive device or brace, a requirement for a rating greater than 10 percent. The record also does not reflect the Veteran ever had a sprain, incomplete ligament tear, or complete ligament tear. Therefore, the Veteran would not be entitled to a rating greater than 10 percent under the new rating criteria from February 7, 2021. Under the old rating criteria, DC 5257 provides ratings for demonstrated knee joint instability with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe, recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The words "slight," "moderate," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. "Nothing in [DC] 5257 provides that objective medical evidence is required or is to be favored over lay evidence." See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Board notes the AOJ granted a 10 percent disability rating for instability from January 25, 2022, the date of the Veteran's most recent VA examination. However, the first evidence of right knee instability occurred at the October 2018 Board Hearing. Prior to the Board hearing, the Veteran denied instability and physicians noted no instability on testing. See May 2012 VA treatment records ("denies instability" and negative instability testing); December 2012 Randolph Orthopedics records ("ligamentously stable"); February 2014 VA examination report; February 2018 Randolph Orthopedics records (negative instability testing). At the October 2018 Board hearing, the Veteran and his wife testified that his knee has given out on him, most recently he testified that he fell while working on his roof. See October 2018 Board Hr. Tr. at 22. The Veteran's wife testified that he falls "at least four or five times a month...and maybe more." Id. However, the next month at a VA appointment, the Veteran denied ever falling in the last twelve months. See November 2018 VA treatment records. The Veteran consistently denied falling in the record during the entire appeal period. See, e.g., November 2016, November 2017, July 2020, and March 2021 VA treatment records. Despite this inconsistency between the Veteran's testimony and the medical record, the Veteran does consistently report his knees give out after the October 2018 Board hearing. See, e.g., March 2019 Orthopedic clinic note; January 2021 VA Form 21-2680. Under the old rating criteria, the record reflects slight instability of the right knee; thus, the Board finds the Veteran is entitled to a 10 percent rating for right knee instability from October 1, 2018. The Veteran's symptoms do not, however, reflect moderate or severe instability from October 1, 2018. In March 2019, the Veteran stated he had "increased knee pain with giveaway sensation," but testing was negative for instability. See March 2019 orthopedic clinic note. In a January 2021 VA Form 21-2680, the Veteran stated his "knees give out easily." The record reflects the Veteran uses "handicap ramps all the time" rather than take the stairs and "has to hold onto a steady surface when he gets up from a seated position," conceivably to steady himself and prevent falling. See February 2021 VA examination report. At the January 2022 VA examination, the Veteran stated he has "come close to falling several times," but there is no evidence the Veteran has ever fallen from knee instability with the exception of the October 2018 Board hearing testimony, noted above. Importantly, no physician or VA examiner found evidence of instability upon testing and the January 2022 VA examiner merely noted evidence of instability without the need for a brace. Additionally, the Veteran consistently stated he once tried a knee brace, but that the brace "further aggravated his knee because he could not bend it" and there is no evidence of record the Veteran has used an assistive device to help with stability. See October 2018 Board Hr. Tr. at 19. Based on this evidence of record, the Veteran's right knee instability more closely represents slight instability. As such, the Board finds the Veteran is entitled to separate disability rating of 10 percent, but no higher, for right knee instability from October 1, 2018 to January 24, 2022. Additionally, he is denied a rating greater than 10 percent for instability from January 25, 2022. C. Other Diagnostic Codes The evidentiary record does not suggest the Veteran exhibited right knee ankylosis at any point in the appeal period; hence, a separate rating under DC 5256 is not warranted. See, e.g., May 2012 and January 2022 VA examination reports. Also, the Veteran does not have a right knee meniscus condition. Id. Hence, separate disability ratings under DCs 5258 or 5259 are not applicable. Finally, the evidentiary record does not suggest impairment of tibia and fibula or genu recurvatum. As such, separate disability ratings under DCs 5262 and 5263 are not warranted during the appeal period. Accordingly, all potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In summation, the Board finds the Veteran is not entitled to a disability rating greater than 10 percent for his right knee condition based on painful limitation of motion. He is also not entitled to a rating greater than 10 percent for right knee instability from January 25, 2022. However, the Veteran is entitled to separate disability rating of 10 percent, but no higher, for right knee instability from October 1, 2018 to January 24, 2022. REASONS FOR REMAND Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is 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. §§ 3.340, 3.341, 4.16(a). During the appeal period, the Veteran was service connected for a left knee condition rated at 20 percent disabling with a noncompensable rating for a left knee scar, in addition to the aforementioned right knee disability rating, rated above. See January 2022 rating decision codesheet. Pursuant to the Order above, the Veteran's combined rating is now 30 percent prior to October 1, 2018 and 40 percent thereafter. Since the schedular rating for two or more disabilities must be a combined rating of at least 70 percent, the Veteran did not meet the minimum percentage rating required for consideration of assignment of TDIU during the relevant period. See 38 C.F.R. § 4.16(a). However, all veterans who do not meet the schedular criteria for TDIU may be considered on an extra-schedular basis when the Veteran was unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). The Board does not have the authority to assign extra-schedular TDIU in the first instance. See Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). However, it may refer the issue to the Director of the Compensation Service for a determination in the first instance as to whether the Veteran was entitled to TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b). Here, the Veteran's DD Form 214 reflects the Veteran served in the Air Force with a military occupational specialty (MOS) of administrative specialist. After service, the Veteran took a carpenter apprenticeship and then worked as a contractor, eventually starting his own construction business, which he contends he ran until July 2019. See October 1973 VA education; July 2020 VA Form 21-4138; July 2020 Veteran correspondence. The Board notes the record reflects the Veteran worked past the month he reportedly dissolved his business. See July 2020 VA Form 21-4138. For example, July 2020 VA treatment records reflect the Veteran "continues to work part-time in construction as skilled labor assisting a contractor." During the appeal period, the Veteran expressed difficulty continuing his business due to his service-connected knee conditions. See May 2012 VA examination report ("cannot get up from kneeling or squatting without assistance and it is very painful; avoids tasks [with] ladders, stairs, and stooping"). The record reflects that as a licensed contractor, the Veteran provided construction for homes and lawns, which is skilled heavy labor. See February 2014 VA examination report. Many witnesses also provided statements that the Veteran's knees created a decline in his mobility, and he had difficulty climbing ladders, working on roofs, and driving long distances to the extent he "drastically cut back" on work. See May 2012 buddy statements. The Veteran has worked his entire life as a contractor in skilled heavy labor; thus, he has the education, training, and experience to work in any skilled or unskilled labor position. The Veteran's right knee symptoms, detailed above, in conjunction with his left knee condition, which the record reflects similar, if not worse, symptoms, impaired the Veteran's ability to continue his contractor business to the extent he retired. See July 2020 Veteran correspondence. In February 2021, an examiner stated the Veteran was unable to sit, stand, walk, squat, kneel, or climb, as it related to his occupation in the construction environment due to the "pain in both knees." See February 2021 medical opinion. Accordingly, the Board finds the evidence suggests the Veteran could not obtain or retain substantially gainful employment due to his service-connected disabilities. However, as stated above, the Board is prohibited from awarding extraschedular TDIU in the first instance. See Wages, 27 Vet. App. at 235-39. Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service for consideration in the first instance. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information, a VCAA notice letter advising him of the criteria needed to substantiate a claim for TDIU, and further develop the claim for TDIU, to include obtaining any employment history records. Ensure that all notification and development action required by 38 U.S.C. §§ 5102, 5103, and 5103A are fully complied with and satisfied with respect to the issue of entitlement to TDIU. 2. Thereafter, refer the Veteran's claim to the Director of the Compensation Service for extraschedular consideration of entitlement to TDIU. 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the appellant and his representative with a supplemental statement of the case (SSOC) and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.