KNEE IMPAIRMENT OF

VITO A. CLEMENTI · 2025 · Case ID: 25000427

MIXED

Summary

The veteran, who served from November 2003 to March 2005, December 2008 to March 2009, and March 2012 to May 2012, appeals the denial of an increased rating for right knee patellar bursitis with limitation of flexion from November 5, 2015, and seeks service connection for hypertension. The Board granted a 30 percent rating for right knee patellar bursitis with limitation of extension from July 19, 2023, a 20 percent rating for recurrent subluxation and lateral instability from July 19, 2023, and a 20 percent rating for frequent episodes of "locking," pain, and effusion from July 19, 2023. The Board denied an increased rating for the flexion limitation, finding it did not meet the criteria for more than 10 percent. The Board also granted a total disability rating based on individual unemployability (TDIU) effective March 31, 2023, and basic eligibility for Dependents' Educational Assistance (DEA) effective March 31, 2023. The Board remanded the issue of service connection for hypertension, citing the PACT Act and the need for a VA opinion on whether hypertension was caused by toxic risk activity (TERA) in Southwest Asia or aggravated by service-connected major depressive disorder, obstructive sleep apnea, and/or migraines. The Board found the veteran met the schedular requirements for TDIU as of July 29, 2020, but granted the TDIU effective March 31, 2023, based on the veteran's cessation of work on that date.

Rationale

March 2016 VA exam: flexion to 125 degrees, no functional loss from ROM.; December 2018 VA exam: flexion to 105 degrees, no functional loss from ROM.; July 2020 VA exam: flexion to 140 degrees, no functional loss from ROM.; July 2023 VA exam: flexion limited to 100 degrees, estimated flexion to 95 degrees, noted pain on flexion causing functional loss.

Special Benefit

TDIU

Diagnostic Code

5260

Docket No.

20-26 912

Full Decision Text

Citation Nr: 25000427
Decision Date: 01/14/25 Archive Date: 01/14/25

DOCKET NO. 20-26 912
DATE: January 14, 2025

ORDER

An initial rating higher than 10 percent for right knee patellar bursitis, with limitation of flexion, from November 5, 2015 to the present, is denied.

A separate 30 percent rating for right knee patellar bursitis, with limitation of extension, from July 19, 2023 to the present, is granted.

A separate 20 percent rating for right knee patellar bursitis, with recurrent subluxation and lateral instability, from July 19, 2023 to the present, is granted.

A separate 20 percent rating for right knee patellar bursitis, with frequent episodes of "locking," pain, and effusion, from July 19, 2023 to the present, is granted.

A total disability rating based on individual unemployability (TDIU), due to service-connected disabilities, from March 31, 2023 to the present, is granted.

Basic eligibility for Dependents' Educational Assistance (DEA), from March 31, 2023, is granted.

REMANDED

The issue of service connection for hypertension, due to environmental hazards and/or as caused or aggravated by service-connected disabilities, is remanded.

FINDINGS OF FACT

1. From November 5, 2015 to the present, the Veteran's right knee, at worst, had flexion limited to 95 degrees, even considering additional limitation caused by pain and flare-ups.

2. From July 19, 2023 to the present, the Veteran's right knee had extension limited to 20 degrees.

3. From July 19, 2023 to the present, the evidence shows moderate right knee recurrent subluxation and lateral instability.

4. From July 19, 2023 to the present, the evidence shows a right knee condition with frequent episodes of "locking," pain, and effusion.

5. From March 31, 2023 to the present, with resolution of the doubt in his favor, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. From November 5, 2015 to the present, the criteria for an initial rating higher than 10 percent for right knee patellar bursitis, with limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5260.

2. From July 19, 2023 to the present, the criteria for a separate 30 percent rating for right knee patellar bursitis, with limitation of extension, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, DC 5261.

3. From July 19, 2023 to the present, the criteria for a separate 20 percent rating for right knee patellar bursitis, with recurrent subluxation and lateral instability, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, DC 5257.

4. From July 19, 2023 to the present, the criteria for a separate 20 percent rating for right knee patellar bursitis, with frequent episodes of "locking," pain, and effusion, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, DC 5258.

5. From March 31, 2023 to the present, the criteria for entitlement to a TDIU have been approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 4.16.

6. From March 31, 2023, the criteria for basic eligibility for DEA have been met. 38 U.S.C. §§ 3501, 5107(a), 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUS
.71a, DC 5258.

5. From March 31, 2023 to the present, the criteria for entitlement to a TDIU have been approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 4.16.

6. From March 31, 2023, the criteria for basic eligibility for DEA have been met. 38 U.S.C. §§ 3501, 5107(a), 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from November 2003 to March 2005; from December 2008 to March 2009 and from March 2012 to May 2012.

The Veteran has a 100 percent combined service-connected disability rating effective in August 2022.

The Board of Veterans' Appeals (Board) has determined the following:

An initial rating higher than 10 percent for right knee patellar bursitis, with limitation of flexion, from November 5, 2015 to the present, will be denied because the evidence shows flexion limited to 95 degrees, even considering additional limitation caused by pain and flare-ups.

A separate 30 percent rating for right knee patellar bursitis, with limitation of extension, from July 19, 2023 to the present, will be granted because the evidence shows extension limited to 20 degrees during the period.

A separate 20 percent rating for right knee patellar bursitis, with recurrent subluxation and lateral instability, from July 19, 2023 to the present, will be granted because the evidence shows moderate recurrent subluxation and lateral instability during the period.

A separate 20 percent rating for right knee patellar bursitis, with frequent episodes of "locking," pain, and effusion, from July 19, 2023 to the present, will be granted because the evidence shows frequent episodes of "locking," pain, and effusion during the period.

A TDIU will be granted, effective March 31, 2023.

Basic eligibility for DEA, from March 31, 2023, will be granted.

The issue of service connection for hypertension is remanded, as below.

Increased Ratings

Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).

Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of
musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59.

Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint).

The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned, or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.: see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis).

In assigning disability ratings, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

1. An initial rating higher than 10 percent for right knee patellar bursitis, with limitation of flexion, from November 5, 2015 to the present, is granted.

2. A separate 30 percent rating for right knee patellar bursitis, with limitation of extension, from July 19, 2023 to the present, is granted.

3. A separate 20 percent rating for right knee patellar bursitis, with recurrent subluxation and lateral instability, from July 19, 2023 to the present, is granted.

4. A separate 20 percent rating for right knee patellar bursitis, with frequent episodes of "locking," pain, and effusion, from July 19, 2023 to the present, is granted.

The Veteran contends that his service-connected right knee patellar bursitis disability is worse than that which is contemplated by his initial 10 percent rating for limitation of flexion, from November 5, 2015 to the present.

For the following reasons, an initial rating higher than 10 percent for right knee patellar bursitis, with limitation of flexion, from November 5, 2015 to the present, is not warranted, and the claim is denied; a separate 30 percent rating for right knee patellar bursitis, with limitation of extension, from July 19, 2023 to the present, is warranted, and the claim is granted; a separate 20 percent rating for right knee patellar bursitis, with recurrent subluxation and lateral instability, from July 19, 2023 to the present, is warranted, and the claim is granted; and a separate 20 percent rating for right knee patellar bursitis, with frequent episodes of "locking," pain, and effusion, from July 19, 2023 to the present, is warranted, and the claim is granted.

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.

Under DC
3 to the present, is warranted, and the claim is granted; a separate 20 percent rating for right knee patellar bursitis, with recurrent subluxation and lateral instability, from July 19, 2023 to the present, is warranted, and the claim is granted; and a separate 20 percent rating for right knee patellar bursitis, with frequent episodes of "locking," pain, and effusion, from July 19, 2023 to the present, is warranted, and the claim is granted.

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.

Under DC 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. 38 C.F.R. § 4.71a, DC 5260.

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

A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. Separate evaluations may also be assigned for subluxation. See 38 C.F.R. § 4.71a, DC 5257.

Under the pre-revised criteria, DC 5257 rated recurrent subluxation or lateral instability of the knee. A 10 percent rating was warranted for slight instability, a 20 percent rating was warranted or moderate instability, and the maximum 30 percent rating was warranted for severe instability. The criteria did not define what constituted slight, moderate, or severe recurrent subluxation or lateral instability.

Under the amended criteria, DC 5257 also rates patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or walker warrants the maximum 30 percent rating.

Under DC 5258, a 20 percent rating is warranted for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint.

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows VA to consider functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca, 8 Vet. App. at 206-07. Further, 38 C.F.R. § 4.45 provides that weakened movement, excess fatigability, and incoordination may be considered.

During the March 2016 VA knee examination, the examiner noted a diagnosis of chronic right knee patellar bursitis. The Veteran reported that his right knee is painful and swells after physical training. He denied having flare-ups and functional loss/impairment of the knee.

Initial range of motion (ROM) measurements were flexion to 125 degrees and extension to 0 degrees. ROM itself was noted not to contribute to functional loss. No pain was noted on examination. Evidence of pain with weight bearing was denied. Objective evidence of localized tenderness or pain on palpation was denied. Objective evidence of crepitus was endorsed.

The Veteran could perform repetitive use testing with at least three repetitions, without additional functional loss or ROM. The Veteran was examined immediately after repetitive use over time, without pain, weakness, fatigability, or incoordination significantly limiting functional ability.

No additional contributing factors to the disability were noted. Muscle strength was noted as five out of five on flexion and extension, without muscle atrophy. Ankylosis was denied. A history of recurrent subluxation and lateral instability was denied. A history of recurrent effusion was endorsed, described as occurring after jogging and lasting for up to two days. Joint stability testing revealed normal results. No additional conditions were indicated. The Veteran denied ever having had a meniscus condition. A March 2016 radiologic report was noted to show prepatellar soft tissue swelling on the right with minimal right suprapatellar effusion. No other pertinent findings were indicated. The use of assistive devices was denied. The examiner noted that the condition does not impact the Veteran's ability to work.

During a December 2018 VA knee examination, the Veteran denied having flare-ups and functional loss/impairment of the knee. Initial ROM measurements were flexion to 105 degrees and extension to 0 degrees. ROM itself was noted not to contribute to functional loss. Pain on flexion was noted on examination but does not result in or cause functional loss. Evidence of pain with weight bearing was denied. Objective evidence of localized tenderness or pain on palpation was endorsed. Objective evidence of crepitus was denied.

The Veteran could perform repetitive use testing with at least three repetitions, without additional functional loss or ROM. The Veteran was not examined immediately after repetitive use over time. However, the examiner noted that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over time.

No additional contributing factors to the disability were noted. Muscle strength was noted as five out of five on flexion and extension, without muscle atrophy. Ankylosis was denied. A history of recurrent subluxation, lateral instability, and recurrent effusion were denied. Joint stability testing revealed normal results. No additional conditions were indicated. The Veteran denied ever having had a meniscus condition. No other pertinent findings were indicated. The regular use of a right knee brace, for stability, was endorsed. The examiner noted that the condition does not impact the Veteran's ability to work.

During a July 2020 VA knee examination, the Veteran reported having a current symptom of intermittent aching that is unaffected by activity or rest. He denied having flare-ups and functional loss/impairment of the knee.

Initial active/passive ROM measurements were flexion to 140 degrees and extension to 0 degrees. ROM itself was noted not to contribute to functional loss. Pain on flexion was noted on examination but does not result in or cause functional loss. Evidence of pain with weight bearing was denied. Objective evidence of pain with non-weight bearing was denied. Objective evidence of localized tenderness or pain on palpation was denied. Objective evidence of crepitus was denied.

The Veteran could perform repetitive use testing with at least three repetitions, without additional functional loss or ROM. The Veteran was not examined immediately after repetitive use over time; however, the examiner estimated that flexion and extension would not be additionally limited. The examiner noted that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over time.

No additional contributing factors to the disability were noted. Muscle strength was noted as five out of five on flexion and extension, without muscle atrophy. Ankylosis was denied. A history of recurrent subluxation, lateral instability, and recurrent effusion were denied. Joint stability testing revealed normal results. No additional conditions were indicated. The Veteran denied ever having had a meniscus condition. No other pertinent findings were indicated. The use of assistive devices was denied. The examiner noted that the condition does not impact the Veteran's ability to work.

During a July 2023 VA knee examination, the examiner noted diagnoses of right knee patellar bursitis, degenerative arthritis, instability, and joint effusion. The examiner noted that diagnoses of meniscal tear, meniscal degenerative changes, edema, and joint effusion are new diagnoses, which are shown by the January 2023 MRI report of the right knee.

The Veteran reported having current symptoms of pain, instability, and swelling. He reported having moderately severe flare-ups when he is unable to stand due to severe pain and swelling. He reported that flare-ups present with symptoms of aching, sharp and shooting pain, and swelling. Flare-ups are precipitated by standing, bending, stooping, and weight bearing. He reported that flare-ups occur two to three times monthly, lasting three days, and result in functional impairment in the form of pain, limping, and swelling that interferes with mobility. He reported having functional loss/impairment of the knee in that his knee swells "up to the size of a soft ball" resulting in an inability to walk. The Veteran endorsed a history of instability or recurrent subluxation in that his knee gives out "all the time" when not wearing a knee brace. The examiner noted moderate recurrent subluxation and moderate lateral instability to the knee on examination. The Veteran also endorsed a history of frequent effusion of the knee in the form of significant swelling with exacerbation of knee pain.

Initial active/passive ROM measurements were flexion to 100 degrees and extension to 15 degrees. ROM itself was noted to contribute to functional loss in the form of pain and limping. Pain on flexion and extension was noted on examination. The examiner noted evidence of pain on active/passive motion and with weight bearing, which causes functional loss; the examiner noted that the Veteran grimaced during painful motion. Objective evidence of moderate localized tenderness to palpation to patella bursa was endorsed. Objective evidence of crepitus was endorsed.

On repetitive use testing with at least three repetitions, flexion was limited to 100 degrees and extension was limited to 20 degrees. Pain, fatigability, weakness, and lack of endurance was noted to cause this functional loss.

The Veteran was not examined immediately after repetitive use over time during the July 2023 examination. However, the examiner noted that the evidence suggests that pain, fatigability, weakness, lack of endurance, and incoordination significantly limits functional ability with repetitive use over time. Estimated in terms of ROM, flexion would be limited to 95 degrees and extension would be limited to 20 degrees.

The Veteran was not examined during a flare-up; however, the examiner noted that procured evidence suggests that pain, fatigability, weakness, and lack of endurance significantly limits functional ability with flare-ups. Estimated in terms of ROM, flexion would be limited to 95 degrees and extension would be limited to 20 degrees.

The examiner noted that additional contributing factors of the disability, include the following: interference with standing and sitting, due to pain with prolonged standing and sitting; swelling, in the form of frequent effusion; disturbance of locomotion, due to pain; and muscle spasm, observed during flexion on active ROM testing. Muscle atrophy was denied. Ankylosis was denied. Recurrent subluxation or persistent instability was endorsed. An incomplete/partial ligament tear was noted. The examiner noted that the requires a prescription for a knee brace for ambulation. No tibial or fibular impairment was noted. The examiner noted that the Veteran has a right knee meniscal tear with frequent episodes of joint pain and effusion, noting that a January 2023 MRI report indicates degeneration and high signal at meniscus with blunting of the free edge and swelling. No surgical procedures were indicated. No other pertinent findings were indicated. The constant use of a knee brace for stability, swelling, and pain was endorsed. The examiner noted that the condition impacts the Veteran's ability to work in that he had to quit working as an aircraft engine mechanic due to inability to maneuver around aircraft and carry toolboxes because of right knee pain, swelling, and instability.

From November 5, 2015 to the present, an initial rating higher than 10 percent is not warranted for right knee patellar bursitis, with limitation of flexion. The evidence shows that right knee flexion has been limited to 95 degrees, at worst, even considering additional limitation caused by pain and flare-ups. Thus, a higher, 20 percent rating is not warranted under DC 5260. Therefore, an initial rating higher than 10 percent is not warranted for right knee patellar bursitis, with limitation of flexion, and the claim is denied.

However, from July 19, 2023
to maneuver around aircraft and carry toolboxes because of right knee pain, swelling, and instability.

However, from July 19, 2023 to the present, a separate, 30 percent rating for right knee patellar bursitis, with limitation of extension, is warranted under DC 5261. The July 2023 VA knee examination shows right knee extension limited to 20 degrees. Given this, from July 19, 2023 to the present, a separate, 30 percent rating for right knee patellar bursitis, with limitation of extension, is warranted, and the claim is granted. However, even considering additional limitation caused by pain and flare-ups, the evidence does not show extension limited to 30 degrees. Thus, from July 19, 2023 to the present, a higher, 40 percent rating is not warranted. A 30 percent rating is not warranted at any time prior to July 19, 2023, because the evidence does not show any limitation of extension, even considering pain and flare-ups. Therefore, from July 19, 2023 to the present, but not prior, a 30 percent rating, but not higher, is warranted for right knee patellar bursitis, with limitation of extension, and the claim is granted.

From July 19, 2023 to the present, a separate, 20 percent rating for right knee patellar bursitis, with recurrent subluxation and lateral instability, is warranted under DC 5257. The July 2023 VA examiner noted that the Veteran has moderate recurrent subluxation and lateral instability of the right knee. Given this, from July 19, 2023 to the present, a separate, 20 percent rating for right knee patellar bursitis, with recurrent subluxation and lateral instability, is warranted, and the claim is granted. However, a higher, 30 percent rating is not warranted because the most probative evidence shows that his recurrent subluxation and lateral instability of the right knee has been characterized as, at worst, moderate, during the period. Thus, from July 19, 2023 to the present, a higher, 30 percent rating is not warranted. A 20 percent rating is not warranted at any time prior to July 19, 2023, because the evidence does not show recurrent subluxation or lateral instability. Therefore, from July 19, 2023 to the present, but not prior, a 20 percent rating, but not higher, is warranted for right knee patellar bursitis, with recurrent subluxation and lateral instability, and the claim is granted.

From July 19, 2023 to the present, a separate, 20 percent rating for right knee patellar bursitis, cartilage dislocation with frequent episodes of "locking," pain, and effusion, is warranted under DC 5258. The July 2023 VA examination shows that the right knee has frequent episodes of "locking," pain, and effusion into the joint. Given this, from July 19, 2023 to the present, a separate, 20 percent rating is warranted, under DC 5258, and the claim is granted. A 20 percent rating is the maximum available rating, under DC 5258. A 20 percent rating is not warranted at any time prior to July 19, 2023, because the evidence does not show cartilage dislocation with frequent episodes of "locking," pain, and effusion. Therefore, from July 19, 2023 to the present, but not prior, a 20 percent, maximum, rating is warranted for right knee patellar bursitis, cartilage dislocation with frequent episodes of "locking," pain, and effusion, and the claim is granted.

As there is no evidence of ankylosis, semilunar cartilage removal, tibia and/or fibula impairment, or genu recurvatum, DCs 5256, 5259, 5262, and 5263 are not for application.

In conclusion, an initial rating higher than 10 percent for right knee patellar bursitis, with limitation of flexion, from November 5, 2015 to the present, is
, 2023 to the present, but not prior, a 20 percent, maximum, rating is warranted for right knee patellar bursitis, cartilage dislocation with frequent episodes of "locking," pain, and effusion, and the claim is granted.

As there is no evidence of ankylosis, semilunar cartilage removal, tibia and/or fibula impairment, or genu recurvatum, DCs 5256, 5259, 5262, and 5263 are not for application.

In conclusion, an initial rating higher than 10 percent for right knee patellar bursitis, with limitation of flexion, from November 5, 2015 to the present, is denied; a separate 30 percent rating for right knee patellar bursitis, with limitation of extension, from July 19, 2023 to the present, is granted; a separate 20 percent rating for right knee patellar bursitis, with recurrent subluxation and lateral instability, from July 19, 2023 to the present, is granted; and a separate 20 percent rating for right knee patellar bursitis, with frequent episodes of "locking," pain, and effusion, from July 19, 2023 to the present, is granted.

The Board has considered the Veteran's subjective complaints, evidence of additional functional loss due to lack of endurance, weakness, fatigue, pain, and the effect and frequency of flare-ups. 38 C.F.R. §§ 4.40 and 4.45, and 4.59; see DeLuca, 8 Vet. App. at 206-07; see also Sharp v. Shulkin, 29 Vet. App. 26 (2017).

5. A TDIU, from March 31, 2023 to the present, is granted.

After review of the evidence, a TDIU will be granted, effective March 31, 2023.

A TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology, or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id.

When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19.

The Veteran has the following service-connected disabilities: major depressive disorder (MDD), rated as 30 percent disabling, effective November 15, 2018, and as 70 percent disabling, effective April 11, 2023; obstructive sleep apnea (OSA), rated as 50 percent disabling, effective July 29, 2020; migraine headaches, rated as 30 percent disabling, effective November 15, 2018; bilateral carpal tunnel syndrome (CTS), each rated as 30 percent disabling, effective August 8, 2019; irritable bowel syndrome (IBS), rated as 30 percent disabling, effective June 12, 2020; right knee limitation of extension, rated as 30 percent disabling, effective July 19, 2023; right knee recurrent subluxation and lateral instability, rated as 20 percent disabling, effective July 19, 2023; right knee with frequent episodes of "locking," pain, and effusion, rated as 20 percent disabling, effective July 19, 2023; right
0; migraine headaches, rated as 30 percent disabling, effective November 15, 2018; bilateral carpal tunnel syndrome (CTS), each rated as 30 percent disabling, effective August 8, 2019; irritable bowel syndrome (IBS), rated as 30 percent disabling, effective June 12, 2020; right knee limitation of extension, rated as 30 percent disabling, effective July 19, 2023; right knee recurrent subluxation and lateral instability, rated as 20 percent disabling, effective July 19, 2023; right knee with frequent episodes of "locking," pain, and effusion, rated as 20 percent disabling, effective July 19, 2023; right knee limitation of flexion, rated as 10 percent disabling, effective November 5, 2015; tinnitus, rated as 10 percent disabling, effective November 5, 2015; chronic sinusitis, rated as 10 percent disabling, effective September 11, 2021; muscle pain and stiffness, rated as 10 percent disabling, effective August 10, 2022; and bilateral hearing loss, rated as noncompensable, effective November 5, 2015.

Under 38 C.F.R. § 4.16(a), the Veteran meets the combined schedular requirement for a TDIU, as of July 29, 2020.

In the April 2023 application for increased compensation based on unemployability, the Veteran reported that he became too disabled to work on March 31, 2023, due to service-connected MDD, OSA, migraines, IBS, right knee, sinusitis, tinnitus, and hearing loss.

In the April 2023 request for employment information, the Veteran's most recent employer reported that the Veteran last worked on March 31, 2023, stating that the company no longer can afford the Veteran concessions in the form of a limited work schedule and ability to take unscheduled leave without pay.

As such, the evidence shows that the Veteran became too disabled to work, and stopped working, on March 31, 2023.

Although the Veteran meets the combined schedular requirement for a TDIU, as of July 29, 2020, the evidence shows that he became too disabled to work, and stopped working, on March 31, 2023. Therefore, the evidence shows that his service-connected disabilities did not prevent him from securing or following a substantially gainful occupation before March 31, 2023.

With resolution of the doubt in the Veteran's favor, the evidence demonstrates that his service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation, effective March 31, 2023. The claim is granted to that extent.

6. Basic eligibility for DEA, from March 31, 2023, is granted.

Dependents' Educational Assistance under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a spouse, surviving spouse, or children, if the applicable criteria are met. See 38 U.S.C. §§ 3500, 3501, 3510, 3512; 38 C.F.R. §§ 21.3020, 21.3021.

Basic eligibility for certification of Dependents' Educational Assistance can be met for the spouse, surviving spouse, or child of a Veteran, if the Veteran has a permanent, total service-connected disability. 38 U.S.C. § 3501. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability rating. 38 C.F.R. § 3.340(a)(2).

As decided above, the Veteran now has a TDIU, effective March 31, 2023. Therefore, entitlement to an effective date of March 31, 2023 for the establishment of basic eligibility for DEA is warranted, and the claim is granted.

REASONS FOR REMAND

The issue of service connection for hypertension, due to environmental hazards and/or as caused or aggravated by service-connected disabilities, is remanded.

The matter is REMANDED for the following action:

1. BACKGROUND FOR THE DECISION REVIEW OPERATIONS CENTER (DROC) ADJUDICATOR:

This is a remand, in part, to provide the Veteran with a VA examination, to include a factually informed and fully explained VA medical opinion about whether his hypertension was caused by in-service toxic
DIU, effective March 31, 2023. Therefore, entitlement to an effective date of March 31, 2023 for the establishment of basic eligibility for DEA is warranted, and the claim is granted.

REASONS FOR REMAND

The issue of service connection for hypertension, due to environmental hazards and/or as caused or aggravated by service-connected disabilities, is remanded.

The matter is REMANDED for the following action:

1. BACKGROUND FOR THE DECISION REVIEW OPERATIONS CENTER (DROC) ADJUDICATOR:

This is a remand, in part, to provide the Veteran with a VA examination, to include a factually informed and fully explained VA medical opinion about whether his hypertension was caused by in-service toxic risk activity (TERA) in Southwest Asia during the Persian Gulf War.

The Veteran is a "Persian Gulf Veteran," and he has been found to have had service that constitutes presumptive toxic exposure per 38 U.S.C. § 1119.

The Veteran contends, in part, that his diagnosed hypertension is related to his exposure to environmental hazards and other toxic substances, to include chemicals and exhaust as part of his duties as an aircraft mechanic.

The Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) was signed into law after the last Regional Office (RO) adjudication. The PACT Act created additional procedural rights for veterans with TERA. It requires that examinations must consider 1) the total potential exposure through all applicable deployments; and 2) the synergistic, combined effect of all toxic exposure risk activities of the veteran. Therefore, the issue of service connection for hypertension is remanded, in part, to comply with the PACT Act.

This matter is also remanded to provide the Veteran with a factually informed and fully explained VA medical opinion about whether his hypertension was CAUSED OR AGGRAVATED (WORSENED) by service-connected MDD, OSA, and/or migraines.

During the June 2024 Board hearing, the Veteran testified that he notices symptoms of high blood pressure when feeling stressed out mentally and when having a bad headache. As such, the issue of service connection for hypertension is also remanded to provide the Veteran with a VA medical opinion about whether the disorder was CAUSED OR AGGRAVATED (WORSENED) by service-connected MDD, OSA, and/or migraines. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006)

THE REMAND DIRECTIVES FOLLOW.

2. Schedule the Veteran for a VA TERA examination to determine the cause of his hypertension by an appropriately qualified examiner. The examiner must review the claims file. All appropriate tests, studies and consultations must be accomplished, and all clinical findings must be reported in detail in the narrative portion of the examination report.

* THE EXAMINER IS ADVISED that the Veteran participated in in-service TERA, in the following locations: Uzbekistan, from July 30, 2004 to October 2, 2004; Uzbekistan, from November 29, 2004 to January 31, 2005; Afghanistan, from January 11, 2009 to February 20, 2009; and Kuwait, from September 1, 2017 to September 30, 2017.

The examiner is requested to provide an opinion for the following QUESTION:

QUESTION: Was the Veteran's hypertension caused by his service, to include exposure to environmental hazards in Uzbekistan, Afghanistan, and/or Kuwait, in Southwest Asia during the Persian Gulf War, to include chemicals and exhaust as part of his duties as an aircraft mechanic?

* When considering if the Veteran's hypertension was caused by environmental hazards, the examiner must consider 1) the total potential exposure through all applicable deployments; and 2) the synergistic, combined effect of all toxic exposure risk activities of the veteran.

* In providing the requested opinion, the examiner must consider the following: (1) the Veteran's report of exposure to environmental hazards during deployments; and (2) his report of exposure to chemicals, including exhaust, as part of his duties as an aircraft mechanic.

* The examiner must provide a complete statement to support the conclusions reached, addressing all relevant lay statements, medical evidence, and medical literature considered in reaching the conclusion.

* The examiner is advised that a negative opinion cannot be based solely on the fact that a disability is not on the list of conditions presumptively associated with service in Southwest Asia.

3. Provide the Veteran with a VA medical opinion, with an appropriate VA examiner, about whether his hypertension was CAUSED OR AGGRAVATED (WORSENED) by service-connected MDD, OSA, and/or migraines. The Veteran's claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should
aircraft mechanic.

* The examiner is advised that a negative opinion cannot be based solely on the fact that a disability is not on the list of conditions presumptively associated with service in Southwest Asia.

*The examiner is ADVISED that, UNDER THE LAW, any incremental increase (i.e., an "aggravation" or worsening) in a disability caused by an already service -connected disorder may be subject to secondary service connection, whether permanent or not.

The examiner MUST fully respond to the following TWO QUESTIONS, and provide an explanation for each response:

QUESTION ONE: Was the Veteran's hypertension CAUSED by service-connected MDD, OSA, and/or migraines?

* Please fully explain why or why not.

QUESTION TWO: Was the Veteran's hypertension AGGRAVATED (WORSENED) by service-connected MDD, OSA, and/or migraines?

* Please fully explain why or why not.

* In providing the requested opinion, the examiner must consider the Veteran's report that he notices symptoms of high blood pressure when feeling stressed out mentally and when having a bad headache.

* THE EXAMINER IS ADVISED THAT UNDER THE LAW, HE OR SHE CANNOT COMBINE CAUSATION AND AGGRAVATION (WORSENING) IN THE VA MEDICAL OPINION AND MUST PROVIDE SEPARATE FINDINGS AND RATIONALE FOR EACH QUESTION.

* The examiner is advised that the standard, as cited above, must be applied. Any opinion provided using any other standard IS NOT ADEQUATE.

* Please provide original opinions that do not rely on any previous opinion. Any opinion that relies on such IS NOT ADEQUATE.

A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation.

The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient.

4. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC), and forward the claim to the Board for adjudication.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

(CONTINUED ON THE NEXT PAGE.)

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112.

Vito A. Clementi

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Timothy T. Emmart

The Board's action is binding only in this case. 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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