Case 22003668

S.C. KREMBS · 2022 · Case ID: 22003668

MIXED

Summary

The Veteran, who served from August 1977 to August 1980 and January 1994 to January 2001, appeals the December 2017 rating decision concerning increased disability ratings for several conditions and entitlement to TDIU. The Veteran withdrew the appeal for a rating in excess of 20 percent for left shoulder dislocation. The Board granted entitlement to a 70 percent rating for major depressive disorder, finding the criteria met due to occupational and social impairment. Increased ratings for left knee strain (painful extension) and left knee instability were granted at 10 percent each, effective March 26, 2019, based on painful extension and subjective complaints of instability. A separate 10 percent rating for symptomatic removal of semilunar cartilage of the right knee was granted effective April 18, 2018. A 10 percent rating for right knee strain (painful extension) and right knee instability were also granted effective March 26, 2019. A 20 percent rating for low back disability was granted effective March 26, 2019, due to limitation of forward flexion and functional loss during flareups. A separate 10 percent rating for left lower extremity radiculopathy was granted, analogous to mild incomplete paralysis. Claims for increased ratings for left knee strain (painful flexion) and right knee strain (painful flexion) were denied due to failure to meet the criteria for higher ratings. The claim for a low back disability rating in excess of 10 percent prior to March 26, 2019, was denied. Finally, entitlement to TDIU was granted, as the Veteran's major depressive disorder was found to preclude substantially gainful employment.

Special Benefit

TDIU

Docket No.

19-33 733

Full Decision Text

Citation Nr: 22003668
Decision Date: 01/25/22 Archive Date: 01/25/22

DOCKET NO. 19-33 733
DATE: January 25, 2022

ORDER

The issue of entitlement to a disability rating in excess of 20 percent for left shoulder dislocation is dismissed.

Entitlement to an increased disability rating of 70 percent for major depressive disorder is granted.

Entitlement to a disability rating in excess of 10 percent for left knee strain (painful flexion) is denied.

Entitlement to a separate 10 percent disability rating for left knee strain (painful extension) for the period from March 26, 2019 is granted.

Entitlement to a separate 10 percent disability rating for left knee instability is granted.

Entitlement to a disability rating in excess of 10 percent for right knee strain (painful flexion) is denied.

Entitlement to a separate 10 percent disability rating for right knee strain (painful extension), for the period from March 26, 2019 is granted.

Entitlement to a separate 10 percent disability rating for right knee instability is granted.

Entitlement to a separate 10 percent disability rating for symptomatic removal of semilunar cartilage of the right knee for the period from April 18, 2018 is granted.

Entitlement to a disability rating in excess of 10 percent for low back pain status post lumbar strain (low back disability) prior to March 26, 2019 is denied.

Entitlement to an increased disability rating of 20 percent for low back disability for the period from March 26, 2019 is granted.

Entitlement to a separate 10 percent rating for left lower extremity radiculopathy is granted.

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

FINDINGS OF FACT

1. On the record at the January 2021 hearing, prior to the promulgation of this decision on the appeal, the Veteran withdrew his appeal as to the claim for entitlement to a disability rating in excess of 20 percent for left shoulder dislocation.

2. The Veteran's major depressive disorder was productive of occupational and social impairment with deficiencies in most areas for the entire appeal period.

3. The Veteran's bilateral knee disabilities were manifested as flexion limited to 130 degrees during the claim period. At no time during the claim period, was flexion limited to 30 degrees or less, even considering pain on use and during flareups.

4. The Veteran's bilateral knee disabilities were productive of painful extension causing functional loss as of March 26, 2019. At no time during the claim period, however, was extension limited to 15 degrees or more, even considering pain on use and during flareups.

5. The Veteran's bilateral knee disabilities were manifested by subjective complaints of instability throughout the claim period.

6. The Veteran experienced removal of semilunar cartilage from the right knee with symptomatic residuals from April 18, 2018.

7. Prior to March 26, 2019, the Veteran's low back disability was manifested by forward flexion greater than 60 degrees but not greater than 85 degrees.

8. For the period from March 26, 2019, the Veteran's low back disability was manifested by limitation of forward flexion to 80 degrees with functional loss during flareups.

9. Resolving doubt in the Veteran's favor, his low back disability is productive of radiculopathy of the left lower extremity analogous to mild incomplete paralysis of the sciatic nerve throughout the claim period.

10. The Veteran's service-connected major depressive disorder precludes him from obtaining and maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal as to the claim of entitlement to a disability rating in excess of 20 percent for left shoulder dislocation are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for entitlement to a disability rating of 70 percent for major depressive disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9434.

3. The criteria for entitlement to a disability rating in excess of 10 percent for left knee strain (painful flexion) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4
. The criteria for entitlement to a disability rating of 70 percent for major depressive disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9434.

4. The criteria for entitlement to a separate 10 percent disability rating for left knee strain (painful extension) for the period from March 26, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5261.

5. The criteria for entitlement to a separate 10 percent disability rating for left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5257.

6. The criteria for entitlement to a disability rating in excess of 10 percent for right knee strain (painful flexion) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5260.

7. The criteria for entitlement to a separate 10 percent disability rating for right knee strain (painful extension), for the period from March 26, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, Diagnostic Code 5261.

8. The criteria for entitlement to a separate 10 percent disability rating for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, Diagnostic Code 5257.

9. The criteria for entitlement to a separate 10 percent disability rating for symptomatic removal of semilunar cartilage of the right knee are met for the period from April 18, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5259.

10. The criteria for entitlement to a disability rating in excess of 10 percent for the Veteran's back disability prior to March 26, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5237.

11. The criteria for entitlement to disability rating of 20 percent for low back disability, effective March 26, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5242.

12. The criteria for a separate evaluation of 10 percent for radiculopathy of the left lower extremity are met. 38 U.S.C. § 1154, 1155, 5107; 38 C.F
5237.

12. The criteria for a separate evaluation of 10 percent for radiculopathy of the left lower extremity are met. 38 U.S.C. § 1154, 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520.

13. The criteria for entitlement to a TDIU are met. 38 C.F.R. § 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1977 to August 1980 and January 1994 to January 2001.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing is of record.

Withdrawal

A substantive appeal may be withdrawn in writing or on the record at a hearing by the Veteran or his authorized representative, at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. In Acree v. O'Rourke, the Federal Circuit Court of Appeals held that an effective claim withdrawal must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the veteran. 891 F.3d 1009 (Fed. Cir. 2018).

On the record at the January 2021 Board hearing, prior to the promulgation of this decision on the appeal, the Veteran's representative stated that the Veteran wished to withdraw the issue of entitlement to a disability rating in excess of 20 percent for left shoulder dislocation. The Board finds that this communication reflects an explicit and unambiguous withdrawal of the Veteran's claim and demonstrates a full understanding of the effect of such withdrawal. Accordingly, there are no specific errors of fact or law for appellate consideration with respect to the issue of entitlement to a disability rating in excess of 20 percent for left shoulder dislocation and it is dismissed. 38 C.F.R. § 7105(d); 38 C.F.R. § 19.55.

Increased Ratings

Generally, disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

Where the appellant has expressed dissatisfaction with the assignment of a rating, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When evaluating joint disabilities rated on the basis of limitation
the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

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, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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 cited above. See id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Court has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

The Board notes that during the pendency of this appeal, the schedule for rating musculoskeletal disabilities was amended, effective February 7, 2012. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Where, as here, a diagnostic code is amended while a claim is pending, VA is required to consider both versions of the code and apply the version most favorable to the Veteran. The only amendment to a diagnostic code relevant in this matter concerns Diagnostic Code 5257. As explained below, the Board finds the prior version of Diagnostic Code 5257 more favorable to the Veteran.

Major Depressive Disorder

The Veteran has a 50 percent disability rating for his major depressive disorder pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. VA received his claim for an increased disability rating on May 18, 2017.

Diagnostic Code 9434 provides a 50 percent rating for 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, difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is assigned for 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 worklike setting), inability to establish and maintain effective relationships.

A 100 percent rating is assigned for 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
, 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 worklike setting), inability to establish and maintain effective relationships.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase "such symptoms as" followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002).

The Board finds that during the claim period, the Veteran's major depressive disorder has been productive of occupational and social impairment with deficiencies in the areas of mood, thinking, work and family. Namely, the Veteran has experienced depression and anxiety, impaired memory, uncontrollable anger and suicidal thoughts. These symptoms have affected the Veteran's ability to establish and maintain effective work relationships and have affected his relationship with his family.

With respect to mood, the record reflects that the Veteran has experienced depression and anxiety, as well as irritability and anger issues throughout the appeal period. The September 2017 and March 2019 VA examiners noted that the Veteran's symptoms included depressed mood and anxiety. The Veteran reported to the September 2017 VA examiner that he was often angry, and the examiner noted that his irritability, low frustration tolerance and rigidity regarding boundaries was consistent with agitated depression. VA treatment records reflect the Veteran's complaints of anxiety, frequent episodes of anger and irritable mood. The Veteran testified at the January 2021 Board hearing that he gets emotionally depressed to the point that he has no motivation to do anything. He also testified that he had problems controlling his anger. The Veteran also submitted a July 2021 private psychological evaluation. The private psychologist noted the Veteran's complaints of general anxiety and depressed mood as well as his irritability and anger.

With respect to the area of thinking, the record reflects that the Veteran experienced memory loss, suicidal thoughts and hallucinations. The September 2017 and March 2019 VA examiners noted that the Veteran's mild memory loss. The Veteran testified at the Board hearing that he had suicidal thoughts, but that he did not report them for fear it would result in confinement. The Veteran also testified that he experienced audio and visual hallucinations. The private psychologist noted the Veteran's feelings of hopelessness, his audio and visual hallucinations and impaired insight.

With respect to the area of work, the September 2017 VA examiner noted that the Veteran last worked in 2012 or 2013 as a store clerk, but left because of conflict with the owner of the store. The September 2017 and March 2019 VA examiners noted that the Veteran's symptoms included difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. The July 2021 private psychological evaluation noted that the Veteran's significant psychological disability resulted in marked to moderate impairment and precluded employment.

With respect to family, the Veteran testified that his marriage ended because of his anger issues. The Veteran also testified that he spoke to his siblings but never got together with them and was a social recluse. VA treatment records from December 2018 note the Veteran's frustration with his spouse and the fact that he
but left because of conflict with the owner of the store. The September 2017 and March 2019 VA examiners noted that the Veteran's symptoms included difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. The July 2021 private psychological evaluation noted that the Veteran's significant psychological disability resulted in marked to moderate impairment and precluded employment.

The Board finds that the Veteran's symptoms of depression, anxiety, anger, suicidal thoughts, hallucinations, social isolation and impaired memory meet the criteria for a 70 percent rating pursuant to Diagnostic Code 9411. These symptoms reflect the Veteran's deficiencies in the areas of mood, thinking, work and family. Based on the severity and frequency of these symptoms, the Board finds that the Veteran's PTSD more closely approximated the criteria for a 70 percent rating throughout the appeal period.

The Board also finds that the record does not reflect total social and occupational impairment so as to warrant a higher rating at any point during the appeal period. the Veteran did not describe symptoms such as gross impairment in thought processes or communication, persistent delusions, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living (including maintenance of personal hygiene) or other symptoms of similar severity, frequency and durations. 38 C.F.R. § 4.130, Diagnostic Code 9434. The Board recognizes the Veteran's occupational impairment and his reports of social isolation, but the record does not reflect total social impairment as the Veteran reported that he had good relationships with his children and grandchildren. The Veteran was also consistently described as being neatly groomed and appropriately dressed. As the record does not support a finding of total social and occupational impairment, a 100 percent disability is not warranted.

Bilateral Knees

Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II.

Generally, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016); 38 C.F.R. § 4.59.

Under Diagnostic Code 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating; 15 degrees warrants a 20 percent rating; 20 degrees warrants a 30 percent rating; 30 degrees warrants a 40 percent rating and 45 degrees warrants a 50 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5261.

Diagnostic Code 5257 covers "other impairment of the knee." The prior version of Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. The amended version of the Diagnostic Code rates knee instability based on the existence of ligament tears or a diagnosed condition involving the patellofemoral complex. As there is no evidence of a ligament tear or a diagnosed condition involving the patellofemoral complex in the record, the Board finds the prior version of the Diagnostic Code more favorable to the Veteran and will rate instability accordingly.

Additionally, Diagnostic Codes 5258 and 5259 are assigned for symptoms associated with removal or dislocation of semilunar cartilage. Specifically, Diagnostic Code 5258 is assigned for frequent episodes of locking, pain, and effusion of
A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. The amended version of the Diagnostic Code rates knee instability based on the existence of ligament tears or a diagnosed condition involving the patellofemoral complex. As there is no evidence of a ligament tear or a diagnosed condition involving the patellofemoral complex in the record, the Board finds the prior version of the Diagnostic Code more favorable to the Veteran and will rate instability accordingly.

Additionally, Diagnostic Codes 5258 and 5259 are assigned for symptoms associated with removal or dislocation of semilunar cartilage. Specifically, Diagnostic Code 5258 is assigned for frequent episodes of locking, pain, and effusion of the knee joint. Diagnostic Code 5259 is assigned for symptoms of a lesser degree than those contemplated by Diagnostic Code 5258.

A knee disability can be rated for both limitation of leg flexion under Diagnostic Code 5260 and limitation of leg extension under Diagnostic Code 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered.

Further, in Lyles v. Shulkin, the Court held that evaluation of a knee disability under the diagnostic codes for recurrent subluxation or instability; limitation of extension; or limitation of flexion does not preclude as a matter of law a separate evaluation of a meniscal disability under Diagnostic Code 5258 or 5259. 29 Vet. App. 107, 115-16 (2017). Accordingly, considering the above, when evaluating the Veteran's bilateral knee disabilities, the Board may assign separate ratings for: (1) recurrent subluxation or lateral instability; (2) limitation of flexion; (3) limitation of extension; and (4) symptoms associated with the dislocation or removal of semilunar cartilage.

Here, the Veteran is rated at 10 percent bilaterally for his knees based on limitation of flexion, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. VA received his claim for increased ratings on May 18, 2017. After reviewing the evidence of record, the Board finds that disability ratings in excess of 10 percent are not warranted for limitation of flexion of the bilateral knees, even considering pain on use and during flareups. However, the Board also assigns separate 10 percent ratings for painful extension of the bilateral knees from March 26, 2019, a separate 10 percent rating for symptomatic removal of semilunar cartilage in the right knee from April 18, 2018 and separate 10 percent ratings for bilateral knee instability throughout the claim period.

As relevant here, the Veteran was afforded VA examinations for his knees in September 2017 and March 2019. The Veteran reported to the September 2017 VA examiner that he experienced intermittent tightness and 8 out of 10 pain made worse by walking and sitting for long periods of time. He reported to the March 2019 VA examiner that he experienced pain in both knees and that they would buckle with flareups. Range of motion testing reflected 130 degrees flexion and 0 degrees extension bilaterally during both VA examinations. The September 2017 VA examination noted pain on flexion, and the March 2019 examination noted pain on flexion and extension. The Veteran was able to perform repetitive use testing with no loss of range of motion during both examinations. Although the Veteran reported flareups, the September 2017 VA examiner determined that it was not possible to determine the estimated loss of range of motion with resort to speculation. The March 2019 VA examiner concluded that there was no loss of range of motion during flareups. Neither examiner found joint instability or ankylosis. The September 2017 VA examiner did not note any meniscal condition. The March 2019 VA examiner noted a meniscal condition in the right knee that resulted in pain. VA treatment records reflect the Veteran's complaints of knee pain and his reports that his knees wanted to "give way" or buckle at times. Private treatment records reflect that the Veteran underwent surgery on his right knee on April 18, 2018 to repair a right knee medial meniscal tear.

The Veteran testified at the Board hearing that he experienced painful flexion that limited his range of motion and that his knees would buckle, causing him to fall. The Veteran also testified that he experienced swelling in his knees.

Based on the foregoing, the Board finds that the
2017 VA examiner did not note any meniscal condition. The March 2019 VA examiner noted a meniscal condition in the right knee that resulted in pain. VA treatment records reflect the Veteran's complaints of knee pain and his reports that his knees wanted to "give way" or buckle at times. Private treatment records reflect that the Veteran underwent surgery on his right knee on April 18, 2018 to repair a right knee medial meniscal tear.

Based on the foregoing, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for limitation of flexion bilaterally, but is entitled to separate 10 percent disability ratings for painful extension from March 26, 2019, a separate 10 percent rating for symptomatic semilunar cartilage removal of the right knee from April 18, 2018 and separate 10 percent ratings for instability of the bilateral knees throughout the claim period. As noted, the range of motion testing does not reflect flexion limited to 30 degrees, even considering pain on use and during flareups. Although the Veteran testified that his painful flexion reduced his range of motion, there is no objective evidence suggesting that the Veteran's range of motion was limited to 30 degrees forward flexion, the measurement required for a 20 percent rating for painful flexion. The Board has considered the DeLuca factors and 38 C.F.R. § 4.59 and finds that a disability rating in excess of 10 percent pursuant to Diagnostic Code 5260 is not warranted.

As to extension, the March 2019 VA examination specifically notes that the Veteran experienced pain on extension. The Board thus finds that the Veteran is entitled to a disability rating of 10 percent for limitation of extension of the bilateral knees from March 26, 2019 under the DeLuca factors and 38 C.F.R. § 4.59. As to instability, the Veteran has credibly reported throughout the claim period that his knees would buckle and give way, causing him to fall. Accordingly, separate 10 percent ratings for instability are warranted pursuant to Diagnostic Code 5257. Although the VA examiners and treatment providers found no instability, medical evidence is not inherently more probative than lay evidence in considering entitlement to a disability rating for knee instability pustulant to Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 352 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). As there is no objective evidence of instability, the Board finds that the Veteran's instability most nearly approximated the ratings for mild instability.

The record also establishes that the Veteran underwent meniscal surgery on his right knee on April 18, 2018. The Veteran reported that he experiences swelling in the right knee. As noted, the March 2019 VA examiner noted that the Veteran had a meniscal condition in his right knee that caused frequent episodes of right knee pain. Affording reasonable doubt in the Veteran's favor, the Board finds that he is entitled to a separate 10 percent disability rating for the right knee from April 18, 2018 for symptomatology due to the removal of his semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. A higher rating is not warranted as the record does not reflect that the Veteran experiences pain, locking and effusion into the right knee as a result of the meniscal condition. Id., Diagnostic Code 5258.

In sum, the Board finds that the Veteran is not entitled to disability ratings in excess of 10 percent for painful flexion bilaterally, but is entitled to separate 10 percent ratings for painful extension from March 26, 2019, a 10 percent rating for the right knee meniscal condition from April 18, 2018 and separate 10 percent ratings for bilateral instability throughout the claim period. To the extent the Veteran's claims for increased ratings are denied, the preponderance of evidence is against those claims, and the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Low Back Disability

The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.
ion bilaterally, but is entitled to separate 10 percent ratings for painful extension from March 26, 2019, a 10 percent rating for the right knee meniscal condition from April 18, 2018 and separate 10 percent ratings for bilateral instability throughout the claim period. To the extent the Veteran's claims for increased ratings are denied, the preponderance of evidence is against those claims, and the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Low Back Disability

The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Spinal Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

Prior to the regulatory change, Diagnostic Code 5242 was assigned for degenerative arthritis of the spine (see also Diagnostic Code 5003) and Diagnostic Code 5243 for IVDS. As of February 7, 2021, under the amended criteria, Diagnostic Code 5242 is assigned for degenerative arthritis and degenerative disc disease (DDD) other than IVDS (see also either Diagnostic Code 5003 or 5010). It also amends Diagnostic Code 5243 for IVDS allowing the Diagnostic Code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating formula under each Diagnostic Code was unchanged.

Ratings under the General Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant here, a 20 percent rating requires evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; a 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Spinal Formula. For an increase to 50 percent, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. See id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees. See id., at Note (2).

Note 5 to the General Spinal Formula defines unfavorable ankylosis as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dislocation; or neurologic symptoms due to nerve root stretching."

Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. The maximum rating under this formula is 60 percent. As demonstrated below, the evidence of record does not demonstrate IVDS and, as such, the ratings are inapplicable.

The Board recognizes that, in some circumstances, it must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination when deciding an appropriate rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; De Luca v Brown, 8 Vet. App. 202, 204-7 (1995).

The Veteran is assigned a 10 percent rating for his back disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. VA received his claim for an increased rating on May 18, 2017. After a review of the evidence of record, the Board finds no basis for a disability rating in excess
addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination when deciding an appropriate rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; De Luca v Brown, 8 Vet. App. 202, 204-7 (1995).

The Veteran is assigned a 10 percent rating for his back disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. VA received his claim for an increased rating on May 18, 2017. After a review of the evidence of record, the Board finds no basis for a disability rating in excess of 10 percent for the period prior to March 26, 2019 as the Veteran's forward flexion was not limited to greater than 30 degrees but not greater than 60 degrees during that time period and his combined range of motion of the thoracolumbar spine was greater than 120 degrees. The Board also finds that the Veteran is entitled to an increased disability rating of 20 percent for the period after March 26, 2019 based on limitation of motion during flareups.

As relevant here, the Veteran was afforded VA examinations for his back in September 2017 and March 2019. The Veteran reported to the September 2017 VA examiner that he experienced intermittent, crampy lower back pain that was 10 out of 10. He did not report flareups. Range of motion was measured as 85 degrees forward flexion, with a combined range of motion of 195 degrees. The Veteran was able to perform repetitive use testing without any additional loss of range of motion. The Veteran reported to the March 2019 VA examiner that he experienced worsening, knot-like pain and that he had difficulty standing for long periods of time. The Veteran also reported flareups that required him to use a heating pad. Range of motion was measured as 80 degrees forward flexion with a combined range of motion of 200 degrees. The examiner reported that the Veteran was able to perform repetitive use testing without loss of range of motion and that there was no loss of range of motion with flareups. Both examiners found no signs of radiculopathy and noted that the Veteran did not have ankylosis or IVDS.

The Veteran testified that his back knots up a couple of time a month, requiring him to walk in a slumped position. He also reported that he tries not to bend over due to pain and there are times when he has to spend the day on the floor with his leg elevated.

Based on the foregoing, the Board finds that a rating of 20 percent for the Veteran's low back disability is warranted from March 26, 2019. Prior to that date the evidence reflects that the Veteran's low back disability was characterized by forward flexion of 85 degrees with pain, which is consistent with a 10 percent rating. There is no evidence for the period prior to March 26, 2019 that the Veteran experienced flareups, altered gait, ankylosis or additional limitation of motion or functional loss after repeated use over time so as to support a rating of 20 percent or greater. Rather, the Veteran denied flareups and was noted to be able to perform repetitive use testing without additional loss of function or range of motion. Accordingly, the preponderance of evidence is against a rating in excess of 10 percent prior to March 26, 2019.

The Veteran's report to the March 2019 VA examiner that he experience flareups that required him to walk in a slumped position and that he avoided bending his back because of the pain, considered with the reduction of his forward flexion to 80 degrees, is consistent with a disability rating of 20 percent based on the DeLuca factors and 38 C.F.R. § 4.59. The Board finds no basis for a rating in excess of 20 percent at any time during the appeal period. The range of motion testing does not suggest limitation of forward flexion to 30 degrees or less and, as noted, there is no evidence of IVDS or ankylosis.

The Board notes that the Court recently found in Chavis v. McDonough, 34 Vet. App. 1 (2021) that the application of 38 C.F.R. §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis. Here, when considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by such statements do not result in symptoms more nearly approximating ankylosis of the entire thoracolumbar spine, or even the functional equivalent of ankylosis. See generally Chavis, supra. The evidence of record shows that the Veteran retained motion of his lumbar spine and was thus not ankylosed. There is simply no evidence that the Veteran's spine was ever fixed in flexion or extension or had the functional equivalent of being so fixed during the worst times of back pain.

Radiculopathy

Consideration of associated objective neurologic abnormalities is inherent in the evaluation of a claim for an increased rating for a spinal disability. See Note (1) following 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Here, the Board finds that the Veteran is entitled to a separate 10 percent disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520 for radiculopathy of the left lower extremity. That Code provides disability ratings of 10, 20 and 40 percent, respectively, for mild, moderate and moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis and an 80 percent rating is warranted for complete paralysis. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.

Here, the Veteran testified that his back pain went down his left leg. VA treatment records also reflect the Veteran's complaint that his back pain went down his left leg. Although the VA examinations do not reflect the existence of radiculopathy. The Board finds the Veteran's subjective reports credible. As noted, the Veteran is competent to provide evidence of his observable symptoms. (Layno v. Brown, 6 Vet. App. 465 (1994)) and the lack of contemporaneous medical evidence is not an absolute bar to service connection. See Buchanan v. Nicholson, 451 F.3d 1131, 1336 (2006). Thus, resolving doubt in the Veteran's favor, the Board finds that a separate award of 10 percent for left lower extremity radiculopathy is warranted. A rating in excess of 10 percent is not warranted as there is no objective evidence of radiculopathy, and the subjective complaints are sensory, and most closely characterized as slight in severity. Accordingly, the Board has determined that the Veteran's radiculopathy of the left lower extremity is not moderate, moderately severe or severe. A review of the claims file shows no basis for finding of entitlement to an additional rating for any other associated objective neurologic abnormality.

TDIU

In order to be entitled to a TDIU, the evidence must show that the Veteran was incapable "of performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure
are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000).

Here, the Veteran contends that he is entitled to a TDIU based on his major depression disorder disability. The Veteran meets the schedular criteria for a TDIU based on this disability as a result of the 70 percent rating assigned by this decision.

The record reflects that the Veteran is a high school graduate and his employment history following his discharge from active duty in 2001 included jobs as a machine operator, warehouse worker and auto parts manager. The Veteran testified at the Board hearing that he last worked for 2 months as a store clerk but could not get along with the owner. The Veteran also testified that his previous jobs as machine operator and auto parts manager ended because he could not get along with anyone. The July 2021 private psychological evaluator concluded that the Veteran's "significant psychological disability" rendered him incapable of competitive employment.

Affording the Veteran the benefit of the doubt, the Board finds that the preponderance of evidence weighs in favor of granting a TDIU. The Veteran's lay statements and the opinion of the July 2021 private psychological evaluator reflect that the Veteran's anger and irritability symptoms would preclude him from employment. According to the July 2021 evaluator, "any attempt to engage in employment . . . is likely to result in an acute deterioration in psychological functioning." Although the March 2019 VA examiner for the Veteran's mental disorder concluded that the Veteran was not precluded from employment, the examiner recognized that the Veteran's symptoms included difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. The September 2017 VA examiner also noted these symptoms. The Veteran's testimony and lay statements reflect his anger issues, isolation from others and inability to trust others at work, leading to his repeated loss of employment. Based on the foregoing, the Board finds that the lay and medical evidence establishes that the Veteran's service-connected major depressive disorder precluded him from performing any type of gainful employment and, accordingly, a TDIU is granted.

S.C. KREMBS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Snyder, 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.

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