Citation Nr: 1723977 Decision Date: 06/26/17 Archive Date: 07/10/17 DOCKET NO. 11-16 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date prior to April 22, 2009, for sleep apnea post adenotonsillectomy. 2. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease with patellar chondromalacia. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from May 1991 to March 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Regional Office (RO) in Roanoke, Virginia. In April 2010, the RO granted service connection for sleep apnea and assigned a noncompensable rating, effective April 22, 2009. In that same rating decision, a 10 percent rating for postoperative patellar chondromalacia with degenerative joint disease of the left knee was continued. The Veteran's Notice of Disagreement (NOD) for these issues was timely received in October 2010. A Statement of the Case was issued in May 2011, and a substantive appeal was received in June 2011. In April 2012, the RO granted a 50 percent rating for sleep apnea, effective April 22, 2009. The Veteran submitted correspondence, received in April 2012, which expressed satisfaction with the rating, but disagreement with the effective date. In a July 2013 rating decision, the RO denied TDIU. The record does not show that the Veteran submitted an NOD following the denial of this benefit; however, the RO added this issue to a Supplemental Statement of the Case (SSOC). Thus, the Board finds that such issue is currently on appeal. The Veteran previously requested to be scheduled for a Board hearing, but submitted timely correspondence in May 2016 to withdraw this request. The request is withdrawn and the Board may proceed with adjudication. 38 C.F.R. § 20.704(d) (2016). In March 2017, the Veteran, through his representative, submitted additional evidence and waived initial consideration of that evidence. Thus, the Board may consider this evidence in the first instance. FINDINGS OF FACT 1. The Veteran filed an initial claim of entitlement to service connection for sleep apnea in April 2001; the claim was denied in a May 2002 rating decision that became final. The Veteran filed another claim for this same disability in February 2004; the claim was denied in an October 2004 rating decision that became final. The Veteran has not alleged clear and unmistakable error with either rating decision. 2. The Veteran filed a request to reopen his claim of entitlement to service connection for sleep apnea on April 22, 2009, which is the current effective date. 3. Throughout the rating period, left knee disability has been manifested by no worse than painful arthritis with limitation of flexion to 95 degrees and zero degrees of extension. 4. The Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date than April 22, 2009, for the grant of service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 5103(a), 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.157, 3.102, 3.155, 3.159, 3.160, 3.400 (2016). 2. The criteria for an increased rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5099 (2016). 3. The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26 (2016); REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims discussed herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Earlier Effective Date for Sleep Apnea The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for sleep apnea. The Veteran filed an initial claim for service connection for a sleep apnea in April 2001, which was denied in a May 2002 rating decision. The Veteran requested to reopen this claim in February 2004, but it was denied in an October 2004 rating decision. Then, in April 2009, the Veteran filed a request to reopen his claim for service connection, which was granted in the April 2010 rating decision and is the subject of this appeal. The RO assigned an effective date of April 22, 2009, which is the date the most recent request to reopen the claim was received. The Veteran contends that, since his claim for service connection was ultimately granted, the effective date should be the date his original claim for service connection was received in April 2001. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. As in effect prior to March 2015, under 38 C.F.R. § 3.155(a), a veteran or a representative of a veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. See also 38 C.F.R. § 3.1(p). A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. 38 C.F.R. § 3.155(b). The Board notes effective dates may also be changed when a prior rating decision is found to have "clear and unmistakable error" (CUE) as described in 38 C.F.R. § 3.105. That is, pursuant to 38 C.F.R. § 3.104 (a), "[a] decision of [an RO] shall be final and binding on all field offices of [VA] as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104 ." 38 C.F.R. § 3.104(a). In this case, the Veteran has not articulated CUE with any prior rating decision, so the Board will not address the issue of CUE herein. With respect to the earlier effective date claim on appeal here, the Board will focus the analysis on determining the proper date of the claim to reopen and the proper date of when entitlement arose. Thereafter, the proper effective date is determined by taking the latter of the two dates determined. See 38 C.F.R. § 3.400(q)(2). As noted above, the RO denied the Veteran's claim for service connection for a sleep apnea in May 2002 and October 2004 rating decisions. The Veteran did not file a timely notice of disagreement (NOD). Thus, these rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Moreover, as noted above, he has not claimed CUE in the May 2002 or October 2004 rating decisions. In claims that have been reopened with new and material evidence, if there has been a final prior RO denial of the benefit sought, the effective date cannot be earlier than the subsequent request to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). Thus, the question before the Board is whether there is any evidence in the claims file that can be construed as a claim to reopen prior to the filing of the claim to reopen filed on April 22, 2009, but subsequent to the last final rating decision in October 2004. Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought, but need not be specific. 38 C.F.R. § 3.155 (2016). After reviewing the record, the Board concludes that there are no testimonial documents submitted prior to April 22, 2009, but after October 2004, indicating intent to request a reopening of a claim of entitlement to service connection for sleep apnea. The Board acknowledges that the treatment records which showed treatment for sleep apnea was in existence at the time of the May 2002 and October 2004 rating decisions that denied the claim. Under 38 C.F.R. § 3.157, once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or one of the uniformed services will be accepted as an informal claim for increased benefits or an informal claim to reopen. In this case, the Board concludes that there are no treatment notes that constitute an informal claim for benefits prior to April 22, 2009. In MacPhee v. Nicholson, the United Stated Court of Appeals for the Federal Circuit (Federal Circuit) found that the mere mention of a condition in a medical record alone cannot be construed as a claim for service connection. 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157 (2011). Rather, the Federal Circuit found that "a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability." Id.; see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established"). Prior to April 2009, the Veteran was not service connected for sleep apnea. Applying the law to the facts of this case, an effective date earlier than April 22, 2009, is not warranted. 38 U.S.C.A. § 5110 ; 38 C.F.R. § 3.400 (r); Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("when a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."); Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("The Court thus holds that the effective-date statute, 38 U.S.C.A. § 5110 (a), is clear on its face with respect to granting an effective date for an award of VA periodic monetary benefits no earlier than the date that the claim for reopening was filed."). In this case, the law does not allow for an effective date earlier than April 22, 2009. The claim is denied. Rating for Left Knee Disability The Veteran contends that his service-connected left knee disability is more severe than the current 10 percent rating reflects (effective April 1, 2001). 38 C.F.R. § 4.71a, Diagnostic Codes 5099-5010 (2016). Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. See 38 C.F.R. § 4.27. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). The basis of disability ratings 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 benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different ratings during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the rating 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). There are numerous Diagnostic Codes that are potentially applicable to evaluation of a knee disability. Diagnostic Code 5256 is utilized for evaluation of ankylosis or the functional equivalent; as there remains some motion of the knees, this Diagnostic Code is not applicable here. Diagnostic Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, or menisci. The general "symptomatic" standard under Code 5259 is subsumed by the rating for knee symptoms under other Codes, as is discussed below. Assignment of a rating under Code 5259 in addition to the currently applied Codes would constitute pyramiding, which is prohibited under 38 C.F.R. § 4.14. Finally, while evaluations under Code 5262 may be based, in part, upon a knee disability, the underlying impairment must be related to damage to the bones of the lower leg. No tibia or fibula impairment has been shown throughout the rating period. 38 C.F.R. § 4.71a. Instability is rated under Diagnostic Code 5257, which evaluates disabilities of the knee based on the degree of subluxation and instability of the joint. 38 C.F.R. § 4.71a. A 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability, and; a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. Id. Descriptive words such as "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. With regard to degenerative joint disease, rated according to the degree of limitation of motion demonstrated, Diagnostic Code 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or zero percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension is rated under Diagnostic Code 5261. A noncompensable evaluation is assigned for limitation to 5 degrees. A 10 percent evaluation is assigned when extension is limited to 10 degrees. Fifteen degrees limitation merits a 20 percent evaluation, and 20 degrees merits a 30 percent evaluation. Limitation to 30 degrees is evaluated as 40 percent disabling, and limitation to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, DC 5261. VAOPGCPREC 9-04 provides that where a claimant has both limitation of flexion and limitation of extension of the same leg separate ratings under diagnostic codes 5260 and 5261 are warranted to adequately compensate for functional loss associated with injury to the leg. Code 5010, for degenerative arthritis, also contemplates ratings based on limitation of motion of the affected joint or joints. However, no greater than the currently assigned 10 percent rating is allowable for each knee under this Code; a 20 percent rating may be assigned for multiple joint involvement, but when combined this would actually result in a lower rating for the two knee joints. In adjudicating the present claim, the Board has also considered the VA General Counsel VAOPGCPREC 9-2004, which interprets that a Veteran can receive separate ratings under Diagnostic Code 5260 (limitation of flexion), and Diagnostic Code 5261 (limitation of extension) for disability of the same joint if both extension and flexion of the knee are impaired to a compensable degree. VAOPGCPREC 9-2004 (2004). The Board has also considered VA General Counsel Opinion (VAOPGCPREC) 23-97, which held that a claimant who has both arthritis and instability of a knee may be granted separate evaluations under DCs 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14. However, any such separate rating must be based on additional disabling symptomatology. That is to say that separate evaluations are appropriate so long as there is evidence of limitation of motion that meets the requirements of the zero percent level under either DC 5260 or 5261. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998). Diagnostic Code 5257, for other impairment of the knee characterized by recurrent subluxation or lateral instability, provides a 10 percent rating for slight knee impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a , Diagnostic Code 5257; see also VAOPGCPREC 9-98. Furthermore, the provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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). More recently, the Court clarified that 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, 25 Vet. App. at 38-43; cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). 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. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board further notes that the provisions of 38 C.F.R. § 4.40 and § 4.45 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Generally, the rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. After a full review of the record, and as discussed below, the Board concludes that an increased rating in excess of 10 percent for a left knee disability is not warranted. Private treatment records from March 2009 showed some mild restriction involving flexion of the Veteran's left knee. There was no evidence of effusion or instability and the Veteran had a negative Lachman test. A MRI revealed minimal chondromalacia patella. On VA examination in January 2010, the Veteran denied any periods of dislocation or subluxation involving his left knee. After objective clinical evaluation of the knee, there was no evidence of grinding, clicking, snapping, instability, ankylosis, patellar or meniscal abnormality, but there were findings of tenderness and pain at rest. Range of motion testing revealed extension to zero degrees and flexion limited to 95 degrees. There was no objective evidence of pain with repetitive use testing. The examiner diagnosed patellar chondromalacia with degenerative joint disease. In June 2011, the Veteran submitted a statement with his substantive appeal in which he expressed disagreement with the January 2010 VA examination report that stated he denied experiencing any "subluxation clicking, grinding, instability, etc." In fact, the Veteran stated that he does experience these symptoms and requires constant pain medication, which is why he initially applied for an increase in his left knee disability rating. The Veteran received another VA examination in April 2012. The diagnosis for mild degenerative joint disease of the left knee with patellar chondromalacia was continued. The Veteran reported flare-ups with pain. Upon examination, the Veteran's range of motion was flexion to 110 degrees with pain, and extension of 0 degrees. There was no additional limitation following repetitive motion. There was no evidence of ankylosis, instability or subluxation. He reported a history of a meniscectomy with residuals of pain, swelling, and weakness. He also told the examiner that he regularly used a brace and occasionally used a cane for ambulation. Left knee x-rays showed arthritis. Subsequent VA treatment records throughout the period on appeal continue to show that the Veteran endorsed left knee pain. The Veteran has consistently complained of bilateral knee pain, particularly with extended use. He is currently rated as 10 percent disabled in the left knee, based on painful motion due to arthritis under Code 5099-5010. Examining the evidence in light of the above rating criteria illustrates that an increased evaluation of the left knee is not warranted. The Board has considered the Veteran's statements of record that a higher disability rating is warranted for his left knee disability. The Veteran is competent to report symptomatology relating to his left knee disability because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Board also acknowledges the Veteran's point of view regarding his statements of worsened left knee pain. However, the Board finds that the probative value of his allegations is outweighed by the aforementioned examiners' findings. More probative evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiners during the current appeal and provided relevant medical findings in conjunction with the examinations. In this regard, the clinical findings, as provided in the examination reports, do not establish a basis to award a higher evaluation. The Board has also considered whether a higher or separate disability rating is warranted. The evidence reflects that the Veteran has complained of pain and limitation of motion associated with his knee. The records indicate the Veteran has been treated with over-the-counter medication and previously used a brace or cane. Overall, the VA examinations and outpatient treatment notes of record have considered the effects of painful motion, repetitive motion, and flare-ups. None of the examinations noted additional functional loss from repetition. Rather the examiner in January 2010 specifically noted there was no additional limitation of motion on repetitive use. Similarly, the April 2012 VA examiner indicated the Veteran performed repetitive use testing of at least three repetitions and noted no additional functional loss or range of motion loss after three repetitions. Without any evidence of functional loss, an increased evaluation based solely on pain is not warranted. 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5260-61; DeLuca, 8 Vet. App. at 202 (1995); Mitchell, 25 Vet. App. at 32. The Board also considered whether a separate evaluation is warranted for instability or subluxation. In this regard, the lay evidence of record suggests that the Veteran experiences weakness, stiffness, giving way, inflammation, buckling, and popping. However, the more probative evidence found within the VA examination reports tested the Veteran's left knee for these symptoms and found no objective indications of dislocation, instability, or other overall functional knee impairment. The examiners considered the lay report of giving way and popping but performed testing, such as Lachman's test, posterior drawer test and varus/valgus testing all of which were normal. While the Veteran has reported subjective feelings of giving way, the Board accords more probative value to the clinical findings made by medical professionals, who specifically examined the Veteran's knee to determine if there was instability, and found no instability or subluxation (see VA examination reports); therefore, the Board finds that a separate rating under Diagnostic Code 5257 is not warranted. The Board also considered whether separate or increased evaluations are warranted under any other Diagnostic Codes pertaining to knee disabilities that would afford the Veteran a higher rating; however the Board finds that at no time during the pendency of this appeal has the Veteran's left knee disability been shown to result in any other functional impairment other than the painful arthritis that results in limited motion for which he is already compensated. Specifically, there is no objective evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256; no objective evidence of symptomatic removal of semilunar cartilage under Diagnostic Code 5259; no objective evidence of dislocated semilunar cartilage with frequent locking pain and effusion to warrant a rating under Diagnostic Code 5258; no objective evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia and fibula and no objective evidence of genu recurvatum to warrant a rating under Diagnostic Code 5263. Based on the foregoing, the Board concludes that the Veteran's left knee disability has been no more than 10 percent disabling for the period on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. TDIU A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2016). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a decision, it is necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2016); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran is currently service connected for sleep apnea, status post adenotonsillectomy, which is currently 50 percent disabling; degenerative joint disease with impingement syndrome of the right hip, which is currently 30 percent disabling; degenerative joint disease with impingement syndrome of the left hip, which is currently 20 percent disabling; postoperative patellar chondromalacia with degenerative joint disease of the left knee, which is currently 10 percent disabling; tinnitus, which is currently 10 percent disabling; degenerative joint disease of the right knee, which is currently 10 percent disabling; lumbar strain, which is currently 10 percent disabling; bilateral hearing loss, which is currently 10 percent disabling; and scar on the left knee, which is noncompensable. The Veteran has a combined disability rating of 90 percent as of June 9, 2011. In the VA Form 21-8940, Veteran's Application for Increased Compensation Based On Unemployability, received in September 2012, the Veteran reported he became too disabled to work in May 2012. He reported he had tried to obtain employment since becoming too disabled to work. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for entitlement to a TDIU. The reasons follow. Following the Veteran's application for TDIU, which was received in September 2012, the Veteran did, in fact, obtain a job at Wellington Federal, which began in October 2012. In an April 2013 letter, the president of the company stated that the Veteran had been an Acquisition Logistics Analyst working there for the past six months and that his duties were not physical in nature and, instead, required him to evaluate policies, create documentation, and provide analysis. He wrote, "In this regard, [the Veteran] has been extremely effective and I will continue to seek his services in his current role." The president acknowledged that the Veteran had a service-related disability that prevented him from working in his traditional area of expertise as a technician/mechanic, but that from all indications, "he has made a successful career adjustment due to these physical limitations." The president added, "It is my professional opinion as an employer that [the Veteran]'s physical disabilities do not prevent him from performing in a working office environment. He again recognized that the Veteran had physical limitations but that the Veteran was able to work in a professional capacity in an administrative/office environment. This evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful employment as of May 2012. At the time of the letter, the Veteran had been working for the company for six months, and the president was not making any allegation that the Veteran was unable to work, but rather that the Veteran had been "extremely effective," even acknowledging that the Veteran had service-connected disabilities. The Board has reviewed the two positive opinions submitted by the Veteran's representative and finds that the probative value of their opinions is lessened for several reasons. First, these two opinions were based on a review of the record and not having either personally examined the Veteran or witnessed him in his occupation. The president of the company, where the Veteran worked for at least six months, had an opportunity to observe the Veteran on a regular basis for that time period and determined that the Veteran's physical disabilities did not prevent him from working. His observation was that the Veteran was "extremely effective" and was able to work in an administrative/office environment. While one of the professionals of the positive opinions is a medical doctor and the other is a rehabilitation specialist, actually observing the Veteran for six months in an occupation is more probative as to whether the Veteran could follow substantial gainful employment. Second, these opinions failed to address this March 2013 letter, which was part of the record at the time they were both provided documents to review and provide opinions. The facts reported in this letter are highly relevant to the issue of whether the Veteran could work. The failure to address the observations by someone for whom the Veteran had worked for six months lessens the probative value of their conclusions. Third, when addressing the medical evidence, there was no acknowledgment by either of them that at least one of the VA examiners questioned the accuracy of the Veteran's report of symptoms. For example, in September 2011, when the Veteran was having his hips examined, flexion of his right hip was limited to 15 degrees and pain began at 0 degrees. Left hip flexion was limited to 30 degrees and pain began at 5 degrees. The examiner noted that range-of-motion testing was limted. She wrote that literature documents that sitting requires 90 to 112 degrees of hip flexion and that the Veteran was able to sit in the chair and stand during the examination with minimal difficulty. She reitereated that testing the range of motion was difficult. It is reasonable to infer that the examiner was stating that the range of motion during testing were not consistent with what the examiner observed when the Veteran was not being tested. Thus, the physican and the rehabilitation specialist relied on facts that likely inaccurate. Fourth, the medical evidence that each of these professionals reviewed was created while the Veteran was working full time and, according to the TDIU application, the Veteran worked full time from 2008 to 2012. Thus, their claims that the Veteran would be unable to work are contradicted by the fact that the Veteran was, in fact, working during this time period. Most of the clinical findings upon which these professional relied were statements from the Veteran, which statements the Board finds lack credibility. For example, the Veteran wrote in his TDIU application that he had missed one month or more in his job from March 2011 to April 2012. In the VA Form 21-4192, "Request for Employment Information In Connection with Claim for Disability Benefits," the employer for whom the Veteran worked during that time period wrote "n/a" (not applicable) in response to the question of time lost during the 12 months preceding the last date of employment. Thus, the Veteran's report of sick time is inconsistent with what his employer wrote. Additionally, when the Veteran submitted his claim for service connection for a low back disability, he claimed it was secondary to his altered gait due to the service-connected left knee disability. He submitted a June 2009 medical opinion from Dr. Craig Bash who concluded that the Veteran's back problems were "due to his long standing left knee problems and associated abnormal gait." However, when he was examined for his back in 2010, he reported falling 25 feet in service in 1993 while in Quantico during a training and landing on his back and being evaluated and released. The 200-plus pages of service treatment records do not document a 25-foot fall. The Veteran was treated in 1993 for an injury to his right big toe and complaints of rib pain after being tackled while playing football. Additionally, in Reports of Medical History that the Veteran completed in 1998 and 2000, he specifically denied recurrent back pain. In the December 2000 Report of Medical History, the Veteran documented the injuries to his right big toe and ribs but did not include an injury to his low back. This is another example of inconsistent statements provided by the Veteran. Additionally, the Veteran has provided evidence from a former co-worker who claims that the Veteran was fired from his employment at Wellington Federal. While it is possible that the Veteran was fired after the president of the company wrote the April 2013 letter, the April 2013 letter from that employer was effusive describing the work that the Veteran was doing at that organization. The employer described the Veteran as "extremely effective" and that he intended to continue to seek the Veteran's services in his role. He also wrote that the Veteran had made a "successful career adjustment due to these physical limitation." This letter was written at a time when the Veteran was claiming that he could not work because of extreme pain that he was experiencing from multiple service-connected disabilities. There was nothing in this letter to indicate that Veteran's disabilities were negatively impacting his ability to work. In fact, the president of the company wrote that the Veteran's disabilities "d[id] not prevent him from performing in a working office environment." This is another inconsistent statement from the Veteran. The Veteran submitted this letter while claiming he was unable to work. The Veteran's employer, who had six months to observe the Veteran, concluded otherwise. The medical evidence upon which these professionals based their opinions was all dated prior to the March 2013 letter, which letter demonstrates that the Veteran was able to secure and following gainful employment. Additionally, these professionals relied upon statements form the Veteran, a former co-worker, and family, and the Board finds that these lay statements are accorded lessened probative value. There are no dates provided by anyone regarding when the Veteran was allegedly fired from his position. The Veteran moved to another state during the appeal, which may explain why there was no income reported on the Social Security form for 2014. As noted above, unemployment is not the same as being unemployable. The Veteran's mother wrote, in a November 2016 letter, that the Veteran could not drive because of the pain in his knees and hips and the danger of him falling asleep, but then went on to write that the Veteran would drive to get the mail and the newspaper. From what she wrote, one would infer that the Veteran would not be able to do much on his own. The Veteran's girlfriend provided a similar description of how the Veteran was unable to do much of anything. However, in an October 2016 VA treatment record, a VA physician described the Veteran's gait as unremarkable. Another VA employee wrote that the Veteran arrived at the hospital in a privately-owned vehicle and was ambulatory. The Veteran denied a history of falls at that time. When addressing the Veteran's systems, the VA employees were not describing someone who was in severe pain or could not walk unassisted. Such description by VA professionals contemporaneously with the Veteran being seen contradicts, to some extent, what the Veteran's mother and girlfriend wrote. For these reasons, their statements are accorded significantly lessened probative value. The Veteran's assigned combined disability rating of 90 percent acknowledges his severe occupational impairment. In conclusion, for all the reasons laid out above, the Board finds the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude his participation in any form of substantially gainful employment. Thus, a TDIU rating is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. ORDER An effective date earlier than April 22, 2009, for the grant of service connection for sleep apnea is denied. A rating in excess of 10 percent for a left knee disability is denied. A TDIU is denied. ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs