HIP IMPAIRMENT OF

DEREK R. BROWN · 2020 · Case ID: 20009100

MIXED

Summary

The veteran, who served from July 1964 to January 1969, appeals the denial of increased ratings for his right hip and knee arthritis, right ankle arthritis, and residuals of a right fifth toe fracture. He also appeals the denial of an initial rating for major depressive disorder prior to August 15, 2014, and an increased rating for major depressive disorder since June 20, 2018. The Board granted a 70 percent rating for major depressive disorder from August 15, 2014, to June 20, 2018, and a separate 10 percent rating for right knee instability effective March 23, 2011. The Board denied increased ratings for right hip arthritis under Diagnostic Codes 5251, 5252, and 5253, and for right knee arthritis under Diagnostic Codes 5260 and 5261 for the periods reviewed. Increased ratings for right ankle arthritis under Diagnostic Code 5271 and for residuals of the right fifth toe fracture were also denied. The Board found the veteran was receiving the maximum schedular ratings for right hip arthritis and right ankle motion limitation. The Board also addressed and denied a claim related to the effective date of a prior rating for right ankle arthritis, finding the prior decision final. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 20, 2018, was remanded for further development and adjudication.

Rationale

Criteria for increased rating not met; Veteran receiving maximum schedular rating

Special Benefit

TDIU

Diagnostic Code

5252

Docket No.

10-07 920

Full Decision Text

Citation Nr: 20009100
Decision Date: 02/04/20 Archive Date: 02/04/20

DOCKET NO. 10-07 920
DATE: February 4, 2020

ORDER

For the period since March 23, 2011, entitlement to an initial rating greater than 10 percent for right hip arthritis under Diagnostic Code 5252 is denied.

For the period since August 12, 2014, entitlement to a rating greater than 10 percent for right hip arthritis under Diagnostic Code 5251 is denied.

For the period since August 12, 2014, entitlement to a rating greater than 20 percent for right hip arthritis under Diagnostic Code 5253 is denied.

For the period prior to August 12, 2014, entitlement to an initial rating greater than 10 percent for right knee arthritis is denied.

For the period since August 12, 2014, entitlement to a rating greater than 40 percent for right knee arthritis is denied.

Entitlement to a separate 10 percent rating for right knee instability is granted effective March 23, 2011 subject to the laws and regulations governing the award of monetary benefits.

For the period prior to August 12, 2014, entitlement to an initial rating greater than 10 percent for right ankle arthritis is denied.

For the period since August 12, 2014, entitlement to a rating greater than 20 percent for right ankle arthritis is denied.

Entitlement to a rating greater than 30 percent for post-operative residuals of a right fifth toe fracture with neuroma and arthritis is denied.

For the period prior to August 15, 2014, entitlement to an initial rating greater than 30 percent for major depressive disorder is denied.

For the period from August 15, 2014 to June 20, 2018, a 70 percent rating and no more for major depressive disorder is granted, subject to the laws and regulations governing the award of monetary benefits.

For the period since June 20, 2018, entitlement to a rating greater than 70 percent for major depressive disorder is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability for the period prior to June 20, 2018 is remanded.

FINDINGS OF FACT

1. For the period beginning March 23, 2011, the Veteran’s right hip arthritis is not manifested by thigh flexion limited to 30 degrees.

2. For the period since August 12, 2014, the Veteran is receiving the maximum schedular ratings for right hip arthritis available under Diagnostic Codes 5251 and 5253.

3. For the period prior to August 12, 2014, the Veteran’s right knee arthritis was not manifested by flexion limited to 30 degrees or extension limited to 15 degrees.

4. For the period since August 12, 2014, the Veteran’s right knee arthritis was not manifested by extension limited to 45 degrees; and limitation of flexion was not compensable.

5. For the period since March 23, 2011, the evidence is at least in equipoise as to whether the Veteran has mild right knee instability.

6. For the period prior to August 12, 2014, the Veteran’s right ankle arthritis was not manifested by a marked limitation of motion.

7. For the period since August 12, 2014, the Veteran is receiving the maximum schedular rating available under Diagnostic Code 5271 for a limitation of right ankle motion, and there is no ankylosis.

8. The preponderance of the evidence is against finding that the Veteran has loss of use of the right foot.

9. For the period prior to August 15, 2014, the Veteran’s major depressive disorder was not manifested by occupational and social impairment with reduced reliability and productivity.

10. For the period from August 15, 2014 to June 20, 2018, the disability picture relating to the Veteran’s major depressive disorder more nearly approximated occupational and social impairment with deficiencies in most areas.

11. For the period since June 20, 2018, the Veteran’s major depressive disorder is not manifested by total occupational and social impairment.

CONCLUSIONS OF LAW

1. For the period since March 23, 2011, the criteria for an initial rating greater than 10 percent for right hip arthritis based on limitation of flexion under Diagnostic Code 5252 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5252.

2. For the period since August 12, 2014, the criteria for a
disorder more nearly approximated occupational and social impairment with deficiencies in most areas.

11. For the period since June 20, 2018, the Veteran’s major depressive disorder is not manifested by total occupational and social impairment.

CONCLUSIONS OF LAW

2. For the period since August 12, 2014, the criteria for a rating greater than 10 percent for right hip arthritis based on limitation of extension under Diagnostic Code 5251 is not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5251.

3. For the period since August 12, 2014, the criteria for a rating greater than 20 percent for right hip arthritis based on thigh impairment under Diagnostic Code 5253 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5253.

4. For the period prior to August 12, 2014, the criteria for an initial rating greater than 10 percent for right knee arthritis were not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261.

5. For the period since August 12, 2014, the criteria for a rating greater than 40 percent for right knee arthritis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261.

6. Resolving reasonable doubt in the Veteran’s favor, the criteria for a separate 10 percent rating for right knee instability have been met since March 23, 2011. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5257.

7. For the period prior to August 12, 2014, the criteria for an initial rating greater than 10 percent for right ankle arthritis were not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271.

8. For the period since August 12, 2014, the criteria for a rating greater than 20 percent for right ankle arthritis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271.

9. The criteria for a rating greater than 30 percent for post-operative residuals of a right fifth toe fracture with neuroma and arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.350(a)(2), 4.71a, Diagnostic Code 5284.

10. For the period prior to August 15, 2014, the criteria for an initial rating greater than 30 percent for major depressive disorder were not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434.

11. For the period from August 15, 2014 to June 20, 2018, the criteria for a 70 percent rating, and no more, for major depressive disorder are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434.

12. For the period since June 20, 2018, the criteria for a rating greater than 70 percent for major depressive disorder are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1964 to January 1969.

In January 2018, a videoconference hearing was held before the undersigned Veterans Law Judge. In June 2018, the Board remanded the appeal for additional development.

In March 2019, the Agency of Original Jurisdiction (AOJ) furnished a statement of the case addressing entitlement to an effective date prior
2018, the criteria for a rating greater than 70 percent for major depressive disorder are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1964 to January 1969.

In January 2018, a videoconference hearing was held before the undersigned Veterans Law Judge. In June 2018, the Board remanded the appeal for additional development.

In March 2019, the Agency of Original Jurisdiction (AOJ) furnished a statement of the case addressing entitlement to an effective date prior to July 27, 2001 for right ankle arthritis; and entitlement to increased ratings for right hip and knee arthritis. The Veteran submitted a Form 9 and the appeal was certified to the Board and subsequently merged with the current appeal.

On review, the evaluation issues were already pending remand. As concerns the effective date, in November 2013 the Board granted entitlement to an effective date of July 27, 2001, but not earlier, for service connection for right ankle arthritis. The Veteran did not appeal the November 2013 decision to the United States Court of Appeals for Veterans Claims (Court) or request reconsideration. Hence, the Board’s November 2013 decision is final. 38 U.S.C. § 7104. The appellant cannot now pursue a freestanding effective date claim and this issue is not for consideration. Rudd v. Nicholson, 20 Vet. App. 296 (2006).

In May 2019, the Veteran perfected an appeal concerning the validity of a debt. The appeal is pending certification and is not currently for consideration.

In September 2019, VA assigned a separate noncompensable rating for right forefoot scars based on dimensions under Diagnostic Code 7802. This issue was also included in the September 2019 supplemental statement of the case. Thereafter, the Veteran submitted a Form 9 and a statement arguing that his right forefoot scar was rated as 10 percent disabling since December 1996 and he did not understand why it was not considered permanent.

Review of the claims folder shows a 10 percent rating for right forefoot scars (Diagnostic Code 7804) has been in effect since December 16, 1996. This evaluation is protected. 38 C.F.R. § 3.951(b). There is no indication the evaluation under Diagnostic Code 7804 was discontinued or otherwise reduced. The Board declines to accept the forefoot scar issue for consideration merely because it was erroneously added to the supplemental statement of the case.

Increased Ratings

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. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155.

Degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59, provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on “greater limitation of motion due to pain on use.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” 38 C.F.R. § 4.40.

Prior to a discussion on the merits, the Board observes that the Veteran is receiving multiple ratings for disabilities affecting the right lower extremity ranging from the foot to the hip. Pursuant to regulation, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level. 38 C.F.R. § 4.68. In this case, the amputation rule would apply at 90 percent which is the rating assigned for thigh amputation with loss of extrinsic pelvic girdle
. 202, 206 (1995). Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” 38 C.F.R. § 4.40.

Entitlement to increased ratings for right hip arthritis

In September 2011, VA granted entitlement to service connection for right hip arthritis and assigned a 10 percent rating effective March 23, 2011. The rating was assigned under Diagnostic Code 5252 which addresses limitation of flexion. The Veteran disagreed with the decision and perfected this appeal.

In November 2015, VA granted additional separate ratings for the right hip, i.e., a 10 percent rating under Diagnostic Code 5251 for a limitation of extension, and a separate 20 percent under Diagnostic Code 5253 for thigh impairment, both effective from August 12, 2014.

The Veteran generally contends that the assigned ratings do not adequately reflect the severity of his disability. At his January 2018 hearing, he testified that his hip hurt all the time, that it sometimes it pops, and that pain made it difficult to sleep. He also reported difficulty bending.

A 10 percent rating is assigned when a limitation of extension of the thigh is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251.

A 10 percent rating is assigned when thigh flexion is limited to 45 degrees. A 20 percent rating is assigned when thigh flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252.

A 10 percent rating is assigned for thigh impairment when there is limited adduction (cannot cross legs) or limited rotation (cannot toe out more than 15 degrees with affected leg). A 20 percent rating is assigned when abduction is limited with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253.

At a VA examination in July 2011, the Veteran complained of pain and stiffness in the right hip. Flareup pain was reportedly precipitated by weather changes, prolonged walking and standing, and attempting to squat. The claimant estimated additional limitation of motion or functional impairment at 100 percent lasting 2 hours to 3 days and occurring 3-4 times per month. On physical examination, range of motion of the right hip was as follows: flexion to 95 degrees, extension to 20 degrees, adduction to 20 degrees, abduction to 40 degrees, external rotation to 45 degrees, and internal rotation to 30 degrees. The Veteran was unable to heel walk or toe walk. There was no additional limitation of motion with repetition. Increased pain at the endpoint range of motion prevented further movement in all fields of motion. Impairment of joint function was primarily due to pain. There was no evidence of abnormal weight-bearing or ankylosis.

The Veteran underwent a VA examination on August 12, 2014. He reported pain with any weightbearing to include increased fatigue and weakness. Range of motion testing showed right hip flexion to 75 degrees, with painful motion at 75 degrees; and extension to zero degrees with painful motion at zero degrees. Abduction was lost beyond 10 degrees. Adduction was limited such that the Veteran could not cross his legs and rotation was limited such that he could not toe-out more than 15 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test range of motion was from 0 degrees of extension to 75 degrees of flexion without additional limitation of motion. There was functional impairment due to less movement than normal, weakened movement, excess fatigability, pain on movement, a disturbance of locomotion, and interference with sitting, standing and/or weightbearing. There was pain on palpation. Right hip flexion, abduction, and extension muscle strength was 4/5. There was no evidence of ankylosis, malunion or nonunion, flail hip joint, or leg length discrepancy. Functioning of the right lower extremity was not so diminished that an amputation with prosthesis would equally serve the Veteran. The examiner stated he was unable to give change in range of motion
motion was from 0 degrees of extension to 75 degrees of flexion without additional limitation of motion. There was functional impairment due to less movement than normal, weakened movement, excess fatigability, pain on movement, a disturbance of locomotion, and interference with sitting, standing and/or weightbearing. There was pain on palpation. Right hip flexion, abduction, and extension muscle strength was 4/5. There was no evidence of ankylosis, malunion or nonunion, flail hip joint, or leg length discrepancy. Functioning of the right lower extremity was not so diminished that an amputation with prosthesis would equally serve the Veteran. The examiner stated he was unable to give change in range of motion with flareup since it would be a guess and total speculation.

The Veteran most recently underwent a VA hip examination in April 2019. The Veteran reported progressive weakness, fatigue, pain with weightbearing and motion, incoordination, and imbalance to the right hip which caused falls. Flareups were dependent on activity and reportedly consisted of pain so severe that he could not sit, stand, ambulate or move the hip. Range of motion of the right hip was as follows: flexion to 70 degrees; extension to 20 degrees; abduction to 15 degrees; adduction to 15 degrees (cannot cross legs); external rotation to 15 degrees; and internal rotation to 20 degrees. There was pain in all fields of motion. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. Muscle strength was 4/5 in flexion, and 3/5 in extension and abduction. There was no muscle atrophy or ankylosis. The Veteran used a cane. Functioning was not so diminished that an amputation with prosthesis would equally serve the Veteran. There was objective evidence of pain with passive motion and non-weightbearing. The examiner stated that after review of the Veteran’s records, to include the physical examination, the reported history and subjective complaints, and using her medical knowledge and expertise, she had no basis to offer additional losses of function or motion with repetitive use or during a flareup.

For the period prior to August 12, 2014, the Veteran was receiving a 10 percent rating under Diagnostic Code 5252. On review, the Board finds no basis for assigning an increased rating as there was no evidence of flexion limited to 30 degrees. There is also no basis for assigning separate ratings under Diagnostic Codes 5251 or 5253. That is, extension was not limited to 5 degrees, and adduction and abduction were only limited by 5 degrees each on examination in July 2011. In making these determinations, the Board acknowledges the Veteran’s complaints but does not find adequate pathology to warrant a higher rating based on pain on motion or other factors. Deluca.

Effective August 12, 2014, the Veteran was assigned separate ratings for his right hip under Diagnostic Codes 5251, 5252, and 5253. On review, the Veteran is receiving the maximum schedular rating available under Diagnostic Codes 5251 and 5253 and a higher schedular rating simply is not available based on extension or impairment of the thigh. The Board further notes that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

Regarding limitation of flexion for the period since August 12, 2014, there is no basis for assigning a rating greater than 10 percent as there is no evidence that thigh flexion is limited to 30 degrees. Flexion was shown to 75 degrees in August 2014 and to 70 degrees in April 2019. Again, the Board has considered the Veteran’s complaints regarding functional limitation but there is no adequate pathology to support a higher rating based on limitation of flexion due to pain on motion or other factors. Deluca.

There is no evidence of hip ankylosis, flail joint, or impairment of the femur and diagnostic codes 5250, 5254, and 5255 are not for application.

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim for increase is denied.

Entitlement to increased ratings for right knee arthritis

There is no evidence of hip ankylosis, flail joint, or impairment of the femur and diagnostic codes 5250, 5254, and 5255 are not for application.

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim for increase is denied.

Entitlement to increased ratings for right knee arthritis

In September 2011, VA granted entitlement to service connection for right knee arthritis and assigned a 10 percent rating from March 23, 2011. The Veteran disagreed with the rating and perfected this appeal. In November 2015, VA increased the rating for right knee arthritis to 40 percent effective August 12, 2014 resulting in staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran contends that the assigned ratings do not adequately reflect the severity of his disability. At the hearing, he testified that he experiences constant knee pain which worsens with activity. He reported that he wears a knee brace for stability because he continues to fall. He reported difficulties stooping, walking, and going up and down stairs. He further stated that doctors have offered him a knee replacement.

Limitation of flexion of the leg is evaluated as follows: limited to 15 degrees (30 percent); limited to 30 degrees (20 percent); limited to 45 degrees (10 percent); and limited to 60 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Limitation of extension of the leg is evaluated as follows: limited to 45 degrees (50 percent); limited to 30 degrees (40 percent); limited to 20 degrees (30 percent); limited to 15 degrees (20 percent); limited to 10 degrees (10 percent); and limited to 5 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5261.

Separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2004); 38 C.F.R. § 4.14.

At a VA examination in July 2011, the Veteran complained of right knee pain with weakness and stiffness. He also complained of tenderness at the lateral aspect of the knee. Flareups were precipitated by weather changes, prolonged walking and standing, and squatting. The appellant estimated any additional limitation of motion or functional impairment during flareup at 100 percent lasting approximately two days and occurring 4-5 times per month. He had a knee brace. Physical examination of the knee revealed swelling. Range of motion testing showed from 0 degrees extension to 120 degrees flexion. Anterior and posterior drawer testing and McMurray’s were negative. There was no additional limitation of motion following three repetitions. Increased pain at the endpoint range of motion prevented further movement in flexion and extension. Impairment of joint function was primarily due to pain. The appellant’s gait was antalgic but there was no evidence of abnormal weightbearing or ankylosis.

On August 12, 2014, the Veteran underwent a VA examination. He reported flareups with increased pain, limitation of motion, swelling, and fatigue. Range of motion of the right knee was flexion to 80 degrees with painful motion beginning at 80 degrees. He was unable to fully extend with extension ending at 30 degrees with painful motion. The Veteran was able to perform repetitive use testing with no additional limitation of motion. There was functional impairment due to less movement than normal, weakened movement, excess fatigability and pain on movement. There was tenderness to palpation and muscle strength was 4/5 in right knee flexion and extension. Stability testing was reported as normal. The Veteran reported regularly using a brace and a cane. The examiner was unable to give an opinion regarding change in motion due to flareups finding that such would be a guess or total speculation.

The Veteran most recently underwent a VA examination in April 2019. He reported weakness, fatigue, pain/aching with weight bearing and range of motion, and incoordination. He also reported frequent falls due to instability, and flareups so severe that he could not sit, stand, ambulate or even move his knee. On physical examination, right knee range of motion was from 35 degrees of extension to 75 degrees of flexion with pain. There was pain with weightbearing and passive range of motion testing. There was also objective evidence of crepitus. Muscle strength was 4/5 in flexion and extension on the right. There was no muscle atrophy or ankylosis. The examiner indicated that joint stability testing was indicated but not able to be performed as the Veteran stated he was not able to tolerate positioning for testing. The examiner stated that functioning of the right knee was not so diminished that an amputation with prosthesis would equally serve the Veteran. The examiner remarked that after reviewing the medical records, physical examination, reported history and subjective complaints, and using her knowledge and expertise, she had no basis to offer additional losses of function or motion with repetitive use or during flareups.

Prior to August 12, 2014, the Veteran did not demonstrate a compensable limitation of flexion or extension, and as such the 10 percent rating was assigned based on x-ray evidence of arthritis and painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. There was no evidence of flexion limited to 30 degrees or extension limited to 15 degrees and a rating greater than 10 percent was not warranted under either Diagnostic Code 5260 or 5261.

Effective August 12, 2014, the Veteran was assigned a 40 percent rating based on a limitation of extension. A rating greater than 40 percent is not warranted as the evidence does not show that extension is limited to 45 degrees. Limitation of flexion was not compensable and a separate rating under Diagnostic Code 5260 is not warranted.

In considering limitation of motion throughout the appeal period, the Board acknowledges the Veteran’s complaints of significant pain and functional limitation. The record, however, does not contain adequate pathology to support greater ratings based on functional impairment due to pain on motion or other factors. Indeed, the most recent examiner indicated there was no basis to establish additional limitation of motion following repetitive use or during flareups.

The Veteran is not shown to have knee ankylosis, cartilage issues, or impairment of the tibia and/or fibula. Hence, Diagnostic Codes 5256, 5258, 5259, and 5262 are not for application.

VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998). Recurrent subluxation or lateral instability of the knee warrants a 10 percent rating when slight, a 20 percent rating when moderate, and a 30 percent rating when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

A VA social work note dated in February 2011 indicates the Veteran continues to have problems with falling and he is supposed to be getting braces to help with stability. A record dated in March 2012 shows that the Veteran wore a long leg brace to prevent his leg from giving way and possibly falling.

Private medical records indicate the Veteran underwent a lower limb orthosis evaluation in August 2014. The report notes right knee laxity/instability, and he was fitted for a knee ankle foot orthosis. The functional need for this design included stabilization of joint and/or musculature for purposes of standing and/or ambulation.

VA records note the Veteran fell in August 2018 after he attempted to get up without his knee brace. He injured his right biceps, and service connection for that disability was subsequently granted on a secondary basis.

The Board acknowledges that stability testing was reportedly negative on VA examinations in July 2011 and August 2014, and that it could not be performed in April 2019. The Court, however, has made clear that objective medical evidence is not required to establish instability under Diagnostic Code 5257, and the Board cannot categorically find that objective medical evidence is more probative
ankle foot orthosis. The functional need for this design included stabilization of joint and/or musculature for purposes of standing and/or ambulation.

The Board acknowledges that stability testing was reportedly negative on VA examinations in July 2011 and August 2014, and that it could not be performed in April 2019. The Court, however, has made clear that objective medical evidence is not required to establish instability under Diagnostic Code 5257, and the Board cannot categorically find that objective medical evidence is more probative than lay evidence without explaining why the finding was made. English v. Wilkie, 30 Vet. App. 347, 349-50 (2018); Petitti v. McDonald, 27 Vet. App. 415 (2015).

The Veteran is competent to report feelings of knee instability and frequent falls. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, evidence of record shows the use of a knee brace throughout the appeal period and in 2014, he was provided a new type of brace in part to assist with knee instability. There is also documentation of falling related to the right knee giving way.

The evidence is at least in equipoise. As such, after resolving reasonable doubt in the Veteran’s favor, the Board finds that the appellant experiences mild right knee instability related to service-connected right knee arthritis and a separate 10 percent rating is warranted from March 23, 2011 – the date service connection for right knee arthritis was established.

Entitlement to increased ratings for right ankle arthritis

In September 2011, VA granted entitlement to service connection for right ankle arthritis and assigned a 10 percent rating effective March 23, 2011. The Veteran disagreed with the decision and perfected this appeal. In March 2019, VA increased the rating for right ankle arthritis to 20 percent effective August 12, 2014 resulting in staged ratings. Fenderson.

The Veteran generally contends that the assigned ratings do not adequately reflect the severity of his right ankle disability. At the hearing, the Veteran testified he had constant pain in the ankle. He also experienced weakness which contributed to falling. He reported being able to flex his ankle, but it was painful. He reported using a walking cane and a brace.

Limitation of motion of the ankle is assigned a 10 percent rating where there is a moderate limitation of motion, and a 20 percent rating for a marked limitation. 38 C.F.R. § 4.71a, Diagnostic Code 5271.

For VA purposes, normal range of ankle motion is dorsiflexion to 20 degrees; and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II.

At a VA examination in July 2011, the examiner noted the Veteran wore a large heavy metal brace specifically designed to prevent rollover of the ankle. The Veteran complained of pain in the right ankle with weakness and stiffness noted. He also complained of instability. Flareups of pain were precipitated by weather changes, prolonged walking, and standing and squatting. The claimant estimated additional limitation during flareup at 100 percent lasting one to four days and occurring 5-6 times per month. Walking activities were reportedly difficult due to his ankle condition. Physical examination revealed a range of right ankle dorsiflexion to 10 degrees; plantar flexion to 45 degrees; inversion to 10 degrees; and eversion to 5 degrees. The Veteran was unable to heel and toe walk. There was no additional limitation of motion with repetitive use testing. There was increased pain at the endpoint range of motion testing that prevented further movement with dorsiflexion, inversion and eversion. Impairment of joint function was primarily due to pain. X-rays of the right ankle showed mild degenerative skeletal change with no appreciable acute osseous or adjacent soft tissue abnormality.

The Veteran underwent a VA examination on August 12, 2014. He reported pain with any type of weightbearing that continued until he stopped the activity and rested. Range of motion of the right ankle was plantar flexion to 10 degrees and dorsiflexion to 10 degrees, both with painful motion. The Veteran was able to perform repetitive use testing with no additional limitation of motion. There was functional impairment due to less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, instability of station, and disturbance of locomotion. Muscle strength was 4/5 in plantar flexion and dorsiflexion on the right. There was laxity compared with the opposite side. There was no ankylosis. The Veteran used a right ankle brace. The examiner stated that right ankle functioning was not so diminished that an amputation with prosthesis would equally serve the Veteran. The examiner stated he was unable to describe what change in range of motion occurred with flareups as such a description would be a guess or total speculation.

The Veteran most recently underwent a VA examination in April 2019. He reported that the right ankle was much weaker and unstable. He reportedly experienced intermittent sharp pains, limited range of motion and more pain with weight bearing. The ability to ambulate was reportedly markedly limited. Range of motion of the right ankle was dorsiflexion to 10 degrees and plantar flexion to 25 degrees with pain. Factors contributing to disability included weakened movement, instability of station, disturbance of locomotion, and interference with standing. Muscle strength in the right ankle was 4/5 in plantar flexion and dorsiflexion. There was no muscle atrophy or ankylosis. There was laxity on the right compared with the opposite side. The Veteran used a brace and cane. The examiner indicated that functioning was not so diminished that an amputation with prosthesis would equally serve the Veteran. The examiner further stated that following review of the Veteran’s history, including subjective complaints, relevant evidence, objective findings, and using her clinical judgment and medical expertise, she identified no basis to offer additional loss of motion or function with repetitive use or during flareups.

For the period prior to August 12, 2014, the objective evidence showed that dorsiflexion was reduced to half of normal and full plantar flexion. There also was evidence of instability and the Board acknowledges the Veteran’s complaints. X-rays, however, showed only mild arthritis at that time and the Board does not find adequate pathology to support a higher rating based on functional impairment due to limitation of motion or other factors. The overall disability picture is not found to more nearly approximate marked limitation of motion and a rating greater than 10 percent is not warranted.

For the period beginning August 12, 2014, the Veteran is receiving the maximum schedular rating under Diagnostic Code 5271. See Johnston. The Board observes that a 30 percent rating is assigned when there is ankylosis in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270. The disability picture in this case, even when considering the Veteran’s complaints of extreme pain and functional limitation, simply does not more nearly approximate this level of impairment. That is, the Veteran can move his right ankle in both plantar flexion and dorsiflexion.

There is no evidence of ankylosis of subastragalar or tarsal joint, malunion of the os calcis or astragalus, and he has not undergone an astragalectomy. Diagnostic Codes 5272, 5273, and 5274 are not for application.

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied.

Entitlement to a rating greater than 30 percent for post-operative residuals of a right fifth toe fracture with neuroma and arthritis

In September 2011, VA continued a 30 percent rating for post-operative residuals of a right fifth toe fracture with neuroma and arthritis. The Veteran disagreed with the rating and perfected this appeal.

At the hearing, the Veteran testified that he has had seven surgeries on his right foot. He reported experiencing weakness and at times his foot was reportedly so swollen and painful that he was unable to walk.

The Veteran’s service-connected foot disability is rated under Diagnostic Code 5284 which provides a 30 percent rating for a severe foot injury. 38 C.F.R. § 4.71a, Diagnostic Code 5284. A note to this provision states to rate as 40 percent when there is
with neuroma and arthritis

Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made based on the actual remaining function, whether the acts of balance, propulsion, etc. in the case of the foot could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2).

“Loss of use” exists when there is “deprivation of the ability to avail oneself” of that extremity, and functional impairment caused by pain, weakness, or incoordination should be considered when making that determination. Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017); Tucker v. West, 11 Vet. App. 369, 373 (1999).

At a VA examination in July 2011, the Veteran reported pain, weakness, stiffness and swelling in the right foot. He stated that approximately twice a week he had flareups bad enough that he must stop everything, and these can last 2 to 4 days. He reported wearing a special shoe. On physical examination, there was no evidence of hallux valgus, hallux varus, or flat foot. Gait was antalgic and there were calluses on the balls of the feet with Morton’s neuroma present. There were no hammer toes or claw foot.

At a VA examination in August 2014, the Veteran reported chronic right foot pain that was worse with any weightbearing. He described experiencing flareups with increased pain, fatigue and weakness which required rest. The examiner noted a history of a right toe fracture with arthritis. The severity was described as moderate and it chronically compromised weight bearing. The Veteran had previous foot surgeries with residual pain. He required regular use of a foot and ankle brace. The examiner opined that right foot functioning was not so diminished that an amputation with prosthesis would equally serve the Veteran.

At a VA examination in August 2018, the Veteran reported surgeries in 2017 for neuroma resection and metatarsal head resection. He reported daily pain and stated that he could only walk 50 yards. The examiner indicated there was pes planus, metatarsalgia, and hammer toes on the right fourth and little toes. There was pain on physical examination both with and without weightbearing. The Veteran required the regular use of a cane due to lower extremity disabilities. The examiner stated that functioning was not so diminished that an amputation with prosthesis would equally serve the Veteran.

At a December 2018 VA examination the Veteran reported pain with walking and standing for prolonged periods of time. The examiner indicated there was pes planus, metatarsalgia, and hammer toes on the fourth and little toes. There was continued pain following recent foot surgery. On physical examination there was pain on movement, pain with and without weightbearing, and disturbance of locomotion. The Veteran used a cane on a constant basis. The examiner stated that functioning was not so diminished that an amputation with prosthesis would equally serve the Veteran.

At a VA examination in April 2019, the Veteran reported approximately seven surgeries including removal of recurrent neuromas. He described constant shock like pain worse with weightbearing. Range of motion was reportedly limited, and he had difficulty with ambulation, weakness, fatigue and incoordination. He wore a right foot/ankle brace and takes pain medications. There was Morton’s neuroma and metatarsalgia. No hammertoes were noted. Residuals from the Veteran’s foot injury were described as moderately severe. The Veteran required the regular use of a brace and a cane. Functioning was not so diminished that an amputation with prosthesis would equally serve the Veteran. Regarding functional impact, the examiner stated that the Veteran was unable to stand longer than 10 minutes at a time or walk farther than 25 feet at a time. The diagnosis
He described constant shock like pain worse with weightbearing. Range of motion was reportedly limited, and he had difficulty with ambulation, weakness, fatigue and incoordination. He wore a right foot/ankle brace and takes pain medications. There was Morton’s neuroma and metatarsalgia. No hammertoes were noted. Residuals from the Veteran’s foot injury were described as moderately severe. The Veteran required the regular use of a brace and a cane. Functioning was not so diminished that an amputation with prosthesis would equally serve the Veteran. Regarding functional impact, the examiner stated that the Veteran was unable to stand longer than 10 minutes at a time or walk farther than 25 feet at a time. The diagnosis was changed to right foot injury; right foot metatarsalgia; and right foot Morton’s neuroma.

Subsequently, an addendum was completed. The examiner stated that the Veteran did not have a formal diagnosis of pes planus and that the section was completed only for rating purposes. He did have metatarsalgia which was a symptom. Specifically, pain involving the metatarsals of the foot. In the Veteran’s case, metatarsalgia was due to the foot deformities associated with the inservice crush injury. The Veteran also has hammertoes affecting the right fourth and fifth toes which were also due to the injury. In summary, the examiner stated that following the inservice crush injury, the Veteran developed metatarsalgia and had surgical revision with syndactylization in May 2017. The severity of his foot issue was judged to be severe and it chronically compromised weightbearing.

On review, the Veteran is currently receiving the maximum schedular rating under Diagnostic Code 5284 absent loss of use of the foot. The Board acknowledges the Veteran’s reports of chronic pain and functional limitation. The evidence throughout the appeal period shows he has a severe foot disability with chronic pain which compromises weightbearing and limits his ability to stand and walk.

Notwithstanding, the overall disability picture does not more nearly approximate loss of use of the right foot. Despite his limitations, the Veteran can ambulate with the assistance of a brace and cane and the examiners have repeatedly stated that functioning of the right foot is not so diminished that an amputation with prosthesis would equally serve him.

The Board acknowledges that the Veteran has hammertoes on the fourth and fifth toes but notes that a noncompensable rating is assigned unless all toes are involved. 38 C.F.R. § 4.71a, Diagnostic Code 5282. The Board also acknowledges the findings of metatarsalgia. A 10 percent rating is assigned when there is metatarsalgia, anterior (Morton’s disease), unilateral or bilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5279. The Veteran’s metatarsalgia (i.e., pain) is related to his inservice foot injury and is contemplated in the rating assigned under Diagnostic Code 5284. Thus, an additional separate rating is not warranted. 38 C.F.R. § 4.14.

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied.

Entitlement to increased ratings for major depressive disorder

In February 2013, VA granted entitlement to service connection for a major depressive disorder and assigned a 30 percent rating effective December 14, 2011. The Veteran disagreed with the decision and perfected this appeal. In April 2019, VA increased the rating for major depressive disorder to 70 percent from June 20, 2018 resulting in staged ratings. Fenderson.

The Veteran contends that the assigned ratings do not contemplate the severity of his disability. At the hearing, he testified that he gets frustrated, angry, upset and depressed and he cannot socialize. The Veteran indicated that he did not want to discuss these issues further.

Major depressive disorder is evaluated under the General Rating Formula for Mental Disorders. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often); chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9434.

A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment
social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often); chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9434.

A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and the inability to establish and maintain effective relationships. Id.

A 100 percent evaluation is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.

The evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed under the referenced diagnostic code are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).

A November 2011 VA record notes the Veteran denied feeling suicidal or ever having suicidal thoughts, but he admitted to suicidal ideation when his ex-wife left the year prior. He denied having any plans. In a February 2012 statement, the Veteran reported he was not able to get out and socialize due to the pain, and he was experiencing a lot of frustration and depression.

At a VA examination in January 2013, the appellant’s symptoms were reported as a depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. On mental status evaluation, he was clean and neatly groomed. His speech was clear, and thought organization was logical and coherent. He reported depression, frustration and irritability at times. His affect was appropriate, he was oriented, and no abnormal mental trends were noted. Thought content was devoid of homicidal or suicidal ideation. The severity of the disability was summarized as occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication.

In his February 2013 notice of disagreement, the Veteran stated that he could not socialize anymore. He also reported having a hard time doing his bills or other paperwork. He reported being tired all the time and his wife had to prompt him to clean up. He offered that if not for his grandchildren, he would not have anything left to live for and the pain and depression were becoming more than he could stand.

In his July 2014 VA Form 9, the Veteran reported that he has gotten so irritable that he curses and screams at his wife and grandchildren. He cannot complete the smallest of tasks without getting upset. He never thought about committing suicide but has wished that he would just die so the pain and frustration would go away.

A VA telephone note dated August 15, 2014 indicates that the Veteran called the primary care clinic stating his pain was so bad and he did not know if he could take it. He denied active thoughts of suicidal ideation but acknowledged passive thoughts. Safety steps were reviewed but the Veteran stopped short of fully agreeing. On August 20, 2014, the Veteran’s son called stating that the Veteran was depressed and planned to hurt himself. A responder from the suicide prevention hotline was able to reach the Veteran who indicated he did not have a plan that day but was isolating. The appellant further reported chronic pain, angry outbursts, and that he was unable to eat and sleep. A VA note dated in August 2015 indicates that the high risk for suicide flag had been inactivated.

In a January 2018 statement, the Veteran reported that things have gotten so bad at times that he has thought about committing suicide.

At a VA examination in July 2018, the Veteran reported having a depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, and suicidal ideation. The examiner observed that the Veteran’s mood was depressed. He was oriented and memory was grossly intact. Insight and judgment were adequate. The disability picture was summarized as occupational and social impairment with reduced reliability and productivity. The examiner further remarked that the depression was moderate to severe.

At a VA examination in December 2018 the Veteran reported a lot of depression and frustration. He was reluctant to talk about suicidal ideation but said that sometimes he thinks about it. Symptoms were reported as depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing effective work and social relationships, and suicidal ideation. The severity of disability was summarized as occupational and social impairment with reduced reliability and productivity. The examiner noted that the symptom picture presented comes together to cause substantial impairment in social and occupational functioning.

At a VA examination in April 2019 the Veteran reported taking medication for chronic pain, and that he experienced serious depression and irritability with insomnia. Symptoms were reported as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner observed that the Veteran was in obvious pain. He was well oriented, cognitively intact, and with highly restricted affect and chronic distress. The severity of the disability was summarized as occupational and social impairment with reduced reliability and productivity.

On review, VA outpatient records show psychiatric treatment throughout the appeal period with numerous complaints including chronic pain, depression, sleep impairment, irritability and isolation. The records also show intermittent reports of suicidal ideation. In addressing 38 C.F.R. § 4.130, the Court has held that “... the language of the regulation indicates that the presence of suicidal ideation alone, that is, a [V]eteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Considering Bankhead and resolving reasonable doubt in the Veteran’s favor, the Board finds that a 70 percent rating and no more is warranted effective August 15, 2014. In making this determination, the Board finds that the Veteran’s acknowledgment of passive suicidal ideation on this date, as well as his son’s concerns which prompted the hotline contacting the Veteran, is probative evidence in determining that his psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas.

Total occupational and social impairment has not been demonstrated at any time since August 15, 2014. There is no evidence of such symptoms as a gross impairment in thought processes or communication, or persistent delusions or hallucinations. The appellant has not reported or shown to engage in grossly inappropriate behavior, and there is no evidence that he is in persistent danger of hurting self or others. Further, there is no evidence of an intermittent inability to perform activities of daily living, that the appellant is disoriented to time or place, or that he has such a severe memory loss that he cannot recall the names of close relatives, own occupation, or his own name. In making this determination, the Board observes that VA examiners in July
occupational and social impairment has not been demonstrated at any time since August 15, 2014. There is no evidence of such symptoms as a gross impairment in thought processes or communication, or persistent delusions or hallucinations. The appellant has not reported or shown to engage in grossly inappropriate behavior, and there is no evidence that he is in persistent danger of hurting self or others. Further, there is no evidence of an intermittent inability to perform activities of daily living, that the appellant is disoriented to time or place, or that he has such a severe memory loss that he cannot recall the names of close relatives, own occupation, or his own name. In making this determination, the Board observes that VA examiners in July 2018, December 2018, and April 2019 all summarized the Veteran’s level of impairment as consistent with a 50 percent rating.

Prior to August 15, 2014, the evidence did not demonstrate that a rating greater than 30 percent was warranted. While there is some notation of prior suicidal ideation, the Board observes that he specifically denied suicidal ideation on VA examination in January 2013, and in July 2014 the claimant stated he never thought about committing suicide. The preponderance of the evidence is against finding that the Veteran’s disability was manifested by occupational and social impairment with reduced reliability and productivity. The Veteran did not exhibit difficulty in understanding commands or impairment of memory, judgment or thinking. While he did report some disturbance of motivation and mood, the overall evidence shows he was generally able to function independently. He was also able to maintain effective social relationships with his grandchildren. He reported on VA examination that his grandsons gave him a purpose and he attended some of their school activities. He also went out to eat about once a month. The Board further notes that the January 2013 VA examiner summarized the Veteran’s level of impairment as consistent with only a 10 percent rating.

REASONS FOR REMAND

Entitlement to a total disability rating based on individual unemployability for the period prior to June 20, 2018

In June 2018, the Board inferred the individual unemployability issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).

In April 2019, VA granted entitlement to a total disability evaluation based on individual unemployability effective June 20, 2018. The appeal period stems from claims received in March 2011 and hence, this represents only a partial grant. Whether individual unemployability was warranted prior to that date remains pending. This issue was not addressed in the 2019 supplemental statements of the case and a remand is needed.

The matters are REMANDED for the following action:

Following the implementation of any increased ratings awarded herein, adjudicate the issue of entitlement to a total disability rating based on individual unemployability prior to June 20, 2018. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case.

DEREK R. BROWN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board M. Carsten, 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.

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