Citation Nr: 1330488 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-15 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 60 percent for asthma. 2. Entitlement to an evaluation in excess of 10 percent for right retropatellar pain syndrome. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active duty service from September 1988 to November 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, granted service connection for post-traumatic stress disorder (PTSD) and assigned an initial 10 percent rating, effective February 18, 2009. In addition, the RO continued a 10 percent disability rating for asthma, and a 10 percent disability rating for patellofemoral joint dysfunction of the right knee. In a September 2011 rating decision, the RO increased the disability rating for asthma to 30 percent. In December 2011, the Veteran testified before the undersigned Veterans Law Judge at the RO (Travel Board hearing); a copy of the transcript has been associated with the record. In September 2012, the Board granted a 70 percent evaluation for the Veteran's PTSD. The decision as to that issue is final and is no longer before the Board. The Board remanded the Veteran's claims for increased evaluations for asthma and a right knee disability for additional development. In May 2013, the Appeals Management Center increased the rating for asthma to 60 percent, effective from January 29, 2009, which was the date of his claim. However, a veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran has not expressed satisfaction with the 60 percent evaluation, this matter remains on appeal to the Board. FINDINGS OF FACT 1. Pulmonary function tests (PFTs) between January 29, 2009 and March 10, 2011 show FEV-1 that is less than 40 percent of predicted. 2. PFT results from March 11, 2011 to the present show FEV-1 results between 40 to 55 percent of predicted; FEV-1/FVC results of at least 78 percent of predicted; and are negative for daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. 3. The Veteran's right retropatellar pain syndrome is manifested by noncompensable limitation of flexion without limitation of extension, subluxation or instability or impairment of the semilunar cartilage. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for bronchial asthma were met during the appeal period prior to March 11, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.97 Code 6602 (2013). 2. The criteria for an evaluation in excess of 60 percent for bronchial asthma from March 11, 2011 have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.97 Code 6602. 3. The criteria for an evaluation in excess of 10 percent for right retropatellar pain syndrome have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.51, 4.71a, Codes 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2013). VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Adequate VCAA notice in an increased rating claim requires that the claimant be told that to substantiate a claim the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); vacated and remanded in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was provided with a letter in March 2009 that supplied the notification required by Dingess, Pelegrini, and Vazquez-Flores. This letter was provided prior to the initial adjudication of his claims. The Board concludes that the duty to notify has been met. The duty to assist has also been met. VA treatment records have been obtained. He was afforded appropriate VA examinations, and the criteria necessary to evaluate his service connected disabilities is contained in the examination reports. The Veteran has offered testimony at a hearing before the undersigned Veterans Law Judge, and a transcript of this hearing is in the record. The Board further finds that the development requested by the September 2012 remand has been completed to the extent possible. The VA facility in question has verified that there is not an April 2009 pulmonary function test to be obtained. However, the remaining VA treatment records that were requested have been obtained, and the Veteran was afforded the requested VA examinations. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. Increased Ratings The Veteran contends that the evaluations currently assigned to his service connected asthma and right knee disability are inadequate to reflect the impairment they produce. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether or not a staged rating is appropriate for the period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Asthma Bronchial asthma with FEV-1 that is less than 40-percent predicted, or; a FEV-1/FVC less than 40 percent, or more than one attack per week with episodes of respiratory failure, or which requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications is evaluated as 100 percent disabling. Bronchial asthma with a FEV-1 of 40- to 55-percent predicted, or; a FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids is evaluated as 60 percent disabling. 38 C.F.R. § 4.97, Code 6602 (2012). A November 2008 pulmonary function test (PFT) showed the FEV-1 was 92 percent of predicted and FEV-1/FVC ratio was 76 percent of predicted. A VA primary care note dated in February 2009 states that the Veteran had normal spirometry with low normal forced expiratory flow rate. He denied shortness of breath in March 2009. The Veteran was afforded a VA fee basis respiratory examination in April 2009. He reported that his symptoms included severe shortness of breath. The Veteran reported attacks two to three times each week. He had emergency room visits once or twice a year, and had undergone three courses of prednisone in the past year. The Veteran used an Albuterol inhaler four times a day without side effects. Pulmonary function testing (PFT) stated that the FEV-1 was 6 percent predicted, and that the FEV-1/FVC ration was 71 percent of predicted. The test results were considered abnormal. The diagnosis was asthma, and the examiner stated that other than during times of asthma attacks, the Veteran was fully functional in his usual daily activities and in his job. An April 2010 VA medication list did not show that the Veteran was using any medication other than the Albuterol inhaler four times a day for his asthma. The record includes the findings of a November 2010 PFT. The FEV-1 was 38 percent of predicted and FEV-1/FVC ratio was 64 percent of predicted. The Veteran underwent an additional VA respiratory examination in February 2011. He had recently stopped using Spiriva and another inhaler and started Symbicort puffs twice daily. The Veteran had not experienced any acute asthma attacks requiring emergency room visits in more than a year, and had not had to use the rescue inhaler since he began Symbicort. The Veteran had an Albuterol inhaler for acute attacks. He still experienced dyspnea on exertion with exercise or walking too far or too fast. The diagnosis was asthma. The Veteran was currently employed on a full time basis. He had lost a week of work in the past year, and that was due to right knee pain. A March 11, 2011 PFT reportedly showed that the FEV-1 was 44 percent of predicted and FEV-1/FVC ratio was 78 percent of predicted. At a May 2011 VA respiratory examination the examiner stated that the claims folder was reviewed. There were some weeks in which the Veteran required the use of Albuterol nebulizer up to six times to avoid emergency room visits, but there were other weeks that it was not required. The examiner opined that the asthma remained active, and that the PFTs from 2005 through March 2011 showed a reduction in pulmonary function with the March 2011 PFTs considered a reflection of the Veteran's present condition. A May 2011 VA treatment note says that the Veteran's asthma was not controlled but persistent. In an August 2011 addendum to the May 2011 examination, the Veteran was noted to have undergone another PFT in July 2011. Pre-bronchodilator, the FEV-1 was 45 percent of predicted, and the FEV-1/FVC ration was 80 percent of predicted. Post-bronchodilator, the FEV-1 as 32 percent of predicted, and the FEV-1/FVC ration was 82 percent of predicted. The examiner noted that there was no bronchodilator response. The examiner commented that this was an abnormal study with poor patient effort. However, the examiner also noted that the PFTs performed in March 2011 and August 2011 were consistent and showed a mild restrictive defect. A September 2011 VA treatment note says that the Veteran's asthma medications were working well and there had been no change in the asthma. The most recent VA examination was conducted in February 2013. The report notes that the claims folder was reviewed. The examiner answered "yes" as to whether or not the Veteran's respiratory condition required the use of oral or parenteral corticosteroid medications. This was noted to be intermittent courses or bursts of systemic (oral or parenteral) corticosteroids, but none had been required during the past year. The Veteran also required intermittent inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication. There had been asthma attacks with episodes of respiratory failure in the past 12 months, but these were less than one a week. Another PFT was not performed, but the examiner reviewed the July 2011 results. The examiner opined that the FEV-1/FVC results most accurately reflected the Veteran's level of disability. The examiner stated that the Veteran's respiratory condition did not impact his ability to work. After careful review of the evidence, the Board finds that entitlement to a 100 percent evaluation is warranted effective from the date of the Veteran's January 29, 2009 claim until March 10, 2011. However, the evidence will only support the current 60 percent rating from the date of the March 11, 2011 PFT. Analysis The Veteran was afforded two PFTs during the period between January 29, 2009 and March 11, 2011. The November 2010 PFT shows that the FEV-1 was 38 percent of predicted. This is consistent with a 100 percent evaluation. The April 2009 VA examination states that the FEV-1 was 6 percent of predicted. The actual PFT report could not be obtained. Given that the findings of the November 2010 PFT clearly support a 100 percent rating, all reasonable doubt in resolved in favor of the Veteran and a 100 percent rating is assigned for this entire period. The Board has not set an effective date for the commencement of the 100 percent rating, so as not to prejudice the Veteran's right to have this matter considered by the RO in the first instance. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1346-48 (Fed.Cir.2003); see also Huston v. Principi, 18 Vet. App. 405 (2004) (holding Board cannot decide matters not initially adjudicated by the agency of original jurisdiction). The 100 percent rating was; however, warranted during the appeal period prior to March 11, 2011. However, the evidence does not support entitlement to a 100 percent rating beyond March 11, 2011. The PFT results as of that date and the PFT that was conducted in August 2011 show FEV-1s of 44 percent and 45 percent respectively, which merit a 60 percent rating. While the August 2011 FEV-1 was lower on post bronchodilator, the examiner stated that the bronchodilator had not been responsive and also cited poor effort. The FEV1-FVC was well above the 40 percent or less required for a 100 percent rating. Finally, the February 2013 VA examiner states that the Veteran's respiratory condition required the use of oral or parenteral corticosteroid medications, this was noted to be only intermittent courses or bursts of systemic corticosteroids and none had been required during the past year. The Board concludes that the criteria for a 100 percent rating for bronchial asthma have not been met beyond March 10, 2011, and the current 60 percent rating is proper. Right Retropatellar Pain Syndrome The current 10 percent rating was assigned in an April 2005 rating decision, effective from February 28, 2003. The rating schedule does not have an exact listing for patellofemoral pain syndrome. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Veteran's knee disability is evaluated by analogy to limitation of flexion of the leg. 38 C.F.R. § 4.71a, Code 5260. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. Limitation of flexion to 30 degrees merits a 20 percent evaluation. Limitation of flexion to 45 degrees warrants a 10 percent evaluation. Limitation of flexion to 60 degrees is evaluated as zero percent disabling. 38 C.F.R. § 4.71a, Code 5260. Another rating code that is for consideration is that for limitation of extension of the leg. Limitation of extension to 45 degrees is evaluated as 50 percent disabling. Limitation of extension to 30 degrees receives a 40 percent evaluation. 20 degrees of extension is evaluated as 30 percent disabling. Limitation of extension to 15 degrees merits a 20 percent evaluation. Limitation of extension to 10 degrees is evaluated as 10 percent disabling. Limitation of extension to 5 degrees is evaluated as 0 percent disabling. 38 C.F.R. § 4.71a, Code 5261. The record contains reports of arthritis, but this has not been confirmed on X-rays. In any event, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. The Board observes that the appropriate rating codes for evaluation of limitation of motion of the knee are the rating codes for limitation of flexion and extension that have already been cited. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. A January 2009 VA treatment record includes the Veteran's report of having had a magnetic resonance imaging study (MRI) of his right knee a year and a half earlier that was negative. The Veteran was provided a VA fee basis examination of his right knee in April 2009. His subjective symptoms included daily knee pain, as well as weakness, instability, giving way, locking, fatigability, and lack of endurance. The Veteran also reported daily flare-ups of pain and instability brought on by physically stressing maneuvers such as climbing, squatting, running, and sitting or standing for too long. The flare-ups reportedly occurred several times a day for 15 to 30 minutes. The examiner said that the Veteran must avoid any physically strenuous activities to avoid these problems, but that he was able to function in his sitdown, nonexertional job as a gate guard. The Veteran used a knee brace. On examination, the right knee was tender to palpation and manipulation of the patella, with crepitance and pain upon motion and torque maneuvers. However, it was stable to all maneuvers. Range of motion showed a normal 140 degrees of flexion, with pain present at 120 degrees. Extension was a normal zero degrees and pain free. Testing of the ligaments was normal, and testing of the meniscus was normal. Range of motion was unchanged after repetitive movements. There was objective evidence of pain, tenderness, and guarding of movement, but not of instability, weakness, fatigue, lack of endurance or incoordination. An X-ray study showed a mild decrease in medial joint space and mild degenerative joint disease. The diagnosis was right knee patellofemoral syndrome and degenerative joint disease of the right knee. The examiner stated that the Veteran was able to perform his usual daily activities and job duties satisfactorily due to the absence of maneuvers that would commonly cause difficulty. The Veteran had another VA examination in February 2011. The claims folder was reviewed by the examiner. The Veteran reported that he continued to experience knee pain on a daily basis. He had tried to improve his symptoms by strengthening the knee but he no longer had time to go to the gym. The Veteran said that his knee did not bother him at work, as his duties were performed while sitting at a desk. His knee symptoms were precipitated by squatting, ascending, pivoting, bending, walking more than a quarter of a mile, and heavy lifting. It was alleviated by rest, medication, non-weight bearing, and a brace. Pain was shown on examination. There was also tenderness, crepitus, and subpatellar tenderness. However, there was no deformity, giving way, instability, stiffness, incoordination, decreased speed of joint motion, dislocation, subluxation, locking, effusion, or flare-ups. The Veteran said that he only wore his brace when working. The range of motion was 120 degrees of flexion. Extension was normal zero degrees. There was objective evidence of pain, but there was no additional limitation after three repetitions of range of motion. It was also noted that when the Veteran was off the table he flexed his knee without pain when not requested by the examiner. A March 2010 X-ray study was within normal limits. The Veteran worked full time as a corrections officer. He had lost one week of work during the last year due to right knee pain. The diagnosis was retropatellar pain syndrome of the right knee. The most recent VA examination was conducted in February 2013. The claims folder was reviewed and additional information was solicited from the Veteran. The Veteran reported flare-ups that impacted the function of his knee that were precipitated by weather changes. Flexion was to 130 degrees, with objective evidence of pain at 125 degrees. Extension was zero degrees without objective evidence of pain. The range of motion was unchanged after repetitive movement. There was no objective evidence of weakened movement, excess fatigability, incoordination, swelling, deformity or instability. Muscle strength was 5/5, and joint stability tests were all normal. There was no evidence of patella dislocation. An x-ray study was negative for degenerative changes. The diagnosis was patellarfemoral syndrome, chondromalacia. The examiner added that it did not impact the Veteran's ability to work. The Board finds that entitlement to an evaluation in excess of 10 percent is not demonstrated. Even with consideration of the functional impact of repetitive motion, the Veteran's limitation of flexion was no more than 120 degrees on any examination, which is far short of the 30 degrees required for a 20 percent rating. The Veteran had normal extension on each examination, even after testing for repetitive movement. He reported experiencing pain, weakness, instability, giving way, locking, fatigability, and lack of endurance at the April 2009 examination. However, the only finding on objective examination was pain, which did not result in a decrease in range of motion. Testing was negative for weakness, instability, giving way, locking, fatigability, and lack of endurance. The Veteran reported flare-ups of symptoms precipitated by weather, but the examiner did not indicate that there was functional loss related to flare-up. Functional loss was noted to be related to pain, which did not cause further limitation of motion. Therefore, entitlement to an increased evaluation based on limitation of motion is not warranted. 38 C.F.R. §§ 4.40, 4.45, 4.51, 4.71a, Codes 5260, 5261. The Board has considered entitlement to separate evaluations based on instability and limitation of motion, but separate evaluations are not supported by the evidence. VAOPGCPREC 9-98. While the Veteran has reported instability, testing for instability has been negative on every examination and instability was not reported during treatment. The Veteran's reports are therefore not deemed credible. Separate evaluations for both extension and flexion of the knee have been considered, but without evidence of limitation of extension, much less compensable limitation of extension, there is no basis for separate evaluations. VAOPGCPREC 9-04. Finally, the Board has considered entitlement to an increased rating under alternative rating codes, but these do not apply or do not support a higher rating. There is no evidence of ankylosis, and the examinations state that there is no subluxation or instability. The Veteran had subjective complaints of locking at the April 2009 examination, but objective testing for dislocation or other damage to the cartilage has been negative on each examination. Finally, there is no evidence of impairment of the tibia and fibula that results in nonunion or malunion. The Board concludes that there is no basis for an evaluation in excess of 10 percent for the Veteran's right retropatellar pain syndrome. 38 C.F.R. §§ 4.71a, Codes 5256, 5257, 5258, 5259, 5262 (2013). Extraschedular and Total Rating for Compensation Based on Individual Unemployability In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The symptoms associated with the Veteran's asthma such as restricted breathing or drug use are contemplated in the rating criteria. Similarly, the pain and limitation of motion of the right knee are also part of the rating criteria. Thus, the evidence does not support referring this case for an extraschedular evaluation. The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). The issue of TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, in spite of the high evaluations that are assigned for the Veteran's disabilities and the high combined evaluation that results, there has been no allegation or evidence of unemployability. On several occasions, the Veteran has indicated that he is employed full time and there is no indication or allegation that this employment is marginal. Both the February 2013 VA examinations for his asthma and his right knee disability specifically state that these disabilities do not impact his ability to work. Accordingly, the question of entitlement to TDIU has not been raised. ORDER Entitlement to a 100 percent rating for asthma for the appeal period prior to March 11, 2011 is granted. Entitlement to an increased rating for asthma for the period beginning March 11, 2011 is denied. Entitlement to an evaluation in excess of 10 percent for right retropatellar pain syndrome is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs