Citation Nr: 1754048 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 12-09 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a disability evaluation in excess of 60 percent for service connected residual of a back injury with degenerative disc disease of the lumbar spine. 4. Entitlement to a disability evaluation in excess of 30 percent for service connected residuals of a left knee injury, status post ACL reconstruction with central one-third patellar tendon graft and partial lateral meniscectomy. 5. Entitlement to a disability evaluation in excess of 10 percent for service connected degenerative arthritis of the left knee. 6. Entitlement to a disability evaluation in excess of 10 percent for a left knee scar. 7. Entitlement to a disability evaluation in excess of 10 percent for service connected depression prior to May 1, 2014, and to a disability evaluation in excess of 30 percent thereafter. 8. Entitlement to a total disability evaluation due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Esq. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1985 to January 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The issues of entitlement to service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have unfavorable ankylosis of the entire spine. 2. The Veteran is afforded the maximum schedular evaluation under Diagnostic Code 5257 for recurrent subluxation or lateral instability of her residuals of a left knee injury, status post ACL reconstruction with central one-third patellar tendon graft and partial lateral meniscectomy and does not suffer from ankylosis of the knee or impairment of the tibia or fibula. 3. The Veteran has degenerative arthritis of the left knee without extension limited to 15 degrees or more or flexion limited to 45 degrees or less. 4. The Veteran has one left knee scar that is painful, but does not cause limitation of motion. No additional scars are painful, unstable, or have a combined area greater than 144 square inches (929 square cm). 5. Prior to May 1, 2014, the Veteran's depression was characterized by occupational and social impairment due to minor or transient symptoms, but not by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self -care, and conversation normal), due to such symptoms as, for example: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss(such as forgetting names, directions, recent events). 6. After May 1, 2014, the Veteran's depression was characterized by occupational and social impairment with reduced reliability and productivity due to such symptoms as, for example, flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficult establishing and maintaining effective work and social relationships, but was not characterized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as, for example: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 6. The Veteran is unable to find or maintain substantially gainful employment due to her service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 60 percent for service connected residuals of a back injury with degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017). 2. The criteria for entitlement to a disability evaluation in excess of 30 percent for service connected residuals of a left knee injury, status post ACL reconstruction with central one-third patellar tendon graft and partial lateral meniscectomy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 3. The criteria for entitlement to a disability evaluation in excess of 10 percent for service connected degenerative arthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2017). 4. The criteria for entitlement to a disability evaluation in excess of 10 percent for a left knee scar have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805 (2017). 5. The criteria for entitlement to a disability evaluation in excess of 10 percent for service connected depression prior to May 1, 2014 has not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.7, 4.124(a), 4.130, Diagnostic Code 9434 (2017). 6. The criteria for entitlement to a disability evaluation of 50 percent, but no greater, for service connected depression after May 1, 2014 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.7, 4.124(a), 4.130, Diagnostic Code 9434 (2017). 7. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. 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, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R., Part 4 (2017). An evaluation of the level of disability present includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2017). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Low Back The Veteran is seeking entitlement to a higher disability evaluation for her service connected degenerative disc disease of the lumbar spine, rated throughout the period on appeal as 60 percent disabling. The Board notes that this rating was assigned under an old diagnostic code, Diagnostic Code 5293, that is no longer in effect. Currently, diseases and injuries of the neck, back, and spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a (2017). Under the General Formula, diseases and injuries to the spine are to be evaluated under Diagnostic Codes 5235 to 5243 as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease; Unfavorable ankylosis of the entire spine ............................................................. 100 Unfavorable ankylosis of the entire thoracolumbar spine ...................................... 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine ................................................................................................ 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine ........................................................................................... 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis ...................................... 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height .................................................................................. 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months ........................................................................................................ 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ............................................................... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ............................................................. 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ............................................................. 10 Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a (2017). In this case, the only way the Veteran could be afforded a higher disability evaluation for her low back disability is if there is evidence of unfavorable ankylosis of the entire spine. The Board has reviewed the available medical evidence, including December 2010, April 2012, and October 2015 VA examinations and can find no evidence that the Veteran suffered from unfavorable ankylosis of the spine during any period on appeal. Accordingly, a higher disability evaluation is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). Left Knee The Veteran is also seeking higher disabilities evaluations for her service connected left knee disability. Throughout the period on appeal, the Veteran has been assigned a 10 percent disability evaluation for degenerative arthritis of the left knee under Diagnostic Code 5010, as well as a separate 30 percent evaluation for residuals of a left knee injury, status post ACL reconstruction with central one-third patellar tendon graft and partial lateral meniscectomy under Diagnostic Code 5257, which rates instability and subluxations. Under Diagnostic Code 5010, arthritis due to trauma is rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, 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 non-compensable, 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, Diagnostic Code 5003. Under Diagnostic Code 5260, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under Diagnostic Code 5257, which rates impairment based on recurrent subluxation or lateral instability of the knee, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability; 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "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. The VA Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Codes 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel further explained that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (Sept. 17, 2004) (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). Regarding the Veteran's residuals of a left knee injury, status post ACL reconstruction with central one-third patellar tendon graft and partial lateral meniscectomy, the Board notes that for the entire period on appeal, the Veteran has been assigned the maximum schedular rating for recurrent subluxation and lateral instability under Diagnostic Code 5257. Accordingly, a higher disability evaluation cannot be assigned under this diagnostic code. The Board has considered whether a higher disability evaluation could be assigned under another diagnostic code, but the only two diagnostic codes which assign a disability evaluation in excess of 30 percent are Diagnostic Code 5256, which rates ankylosis, and Diagnostic Code 5262, which rates impairment of the tibia and fibula. The Board has reviewed the available medical records and can find no evidence that the Veteran suffers from ankylosis of the left knee or impairment of the tibia or fibula. Accordingly, these diagnostic codes are not applicable to the Veteran's disability and a disability evaluation in excess of 30 percent cannot be assigned for residuals of a left knee injury, status post ACL reconstruction with central one-third patellar tendon graft and partial lateral meniscectomy during any period on appeal. The Veteran has also been assigned a separate 10 disability evaluation under Diagnostic Code 5010 for degenerative arthritis for the period on appeal. As noted above, degenerative arthritis is either rated based on limitation of motion, if compensable, or assigned a 10 percent evaluation. The Veteran was afforded a VA examination in July 2008. Range of motion of the left knee was from -5 degrees extension to 90 degrees flexion, with pain throughout the range of motion, but no additional limitation of motion following repetitive testing. The examiner concluded that he was unable to determine any functional limitation during flare-ups without resorting to speculation. A September 2009 VA Orthopedic Consult Note records range of motion from full extension to 120 degrees flexion. At an October 2009 VA examination the Veteran had extension limited to 5 degrees, with no additional limitation following repetitive testing. Flexion was to 65 degrees, with pain from 50-65 degrees and flexion limited to 50 degrees following repetition. The Veteran was afforded another VA examination in April 2011. At that time, range of motion was from 14 degrees extension to 70 degrees flexion. The examiner was unable to estimate range of motion during a flare-up without speculation. In April 2012, the Veteran was afforded another VA examination. The examiner reports that the Veteran had extension to -10 degrees and flexion from 0 to 45 degrees, which is somewhat contradictory, as the examiner's account of the Veteran's flexion suggests she is able to fully extend. There was pain and resistance with flexion, but no additional limitation of motion following repetitive testing. The Veteran was most recently afforded a VA examination in October 2015. At that time, range of motion was from 0 degrees extension to 100 degrees flexion, with no additional loss of motion following repetitive testing. The examiner reported that the Veteran was being examined during a flare-up. The above evidence reflects that the Veteran's left knee flexion has not been sufficiently limited at any time during the period on appeal to warrant a disability evaluation in excess of 10 percent. During the period on appeal, the Veteran's extension has not been limited to 15 degrees or greater, so a disability evaluation in excess of 10 percent under Diagnostic Code 5261 is not warranted. Additionally, a compensable evaluation under Diagnostic Code 5260 is not supported by the preponderance of the evidence. While the Board does note that the April 2012 examiner reported flexion limited to 45 degrees, which would meet the criteria for a 20 percent evaluation under Diagnostic Code 5260, the Board also notes that the examiner appeared to report two conflicting descriptions of the Veteran's range of motion, suggesting that the Veteran's range of motion was either improperly measured or improperly reported. Significantly, the Veteran had much greater flexion on other VA examinations, including her most recent October 2015 VA examination, which was reportedly conducted during a flare-up of the Veteran's disability, which further suggests that the April 2012 VA examination results are not representative of the Veteran's overall level of impairment. Accordingly, the Board finds that separate staged rating is not appropriate based solely on the April 2012 VA examination results. The Board has also considered whether an additional separate evaluation is warranted under another diagnostic code. The record reflects that the Veteran has reported symptoms of pain, stiffness, locking, and swelling in her left knee and the Board has considered whether a separate evaluation should be assigned under Diagnostic Code 5258, which rates dislocated semilunar cartilage with pain, locking and effusion into the joint. However, the Board notes that arthritis, for which the Veteran is already receiving compensation, is a disability that is frequently characterized by symptoms of joint pain, stiffness, and swelling, and therefore, an additional rating would constitute pyramiding. For all the above reasons, entitlement to a disability evaluation in excess of 10 percent for degenerative arthritis of the left knee or in excess of 30 percent for a left knee injury, status post ACL reconstruction with central one-third patellar tendon graft and partial lateral meniscectomy must be denied for the entire period on appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). Scar The Veteran is also seeking a higher disability evaluation for a left knee scar, currently assigned a 10 percent disability evaluation under Diagnostic Code 7804. Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. A VA examination in July 2008 noted a well-healed surgical scar on the left knee. An April 2011 examination documented a 15.5 cm scar the shape of an L on the anterior of the left knee. The scar was allegedly painful, but no objective signs of such pain were observed by the examiner. An April 2012 VA examination described a 6x .lcm scar on the midline of the left knee, which is well-healed, normal pigmented, smooth, flat, and stable. There was no adherence to underlying tissue. The texture was normal with that of the surrounding skin. The Veteran denied any pain of the scar on examination. There was no muscle loss, limitation of function, or chronic skin change associated with the scar. An October 2015 VA Knee examination noted that the Veteran had a one surgical scar of the left knee that was 8 cm x 0.2 width and was not painful. However, an October 2015 VA Scars examination reported that the Veteran had four scars that she described as tender, but that were otherwise well-healed and stable. All the scars were described as superficial and non-linear. Scar one was located on the lateral aspect of the anterior left knee and was 2.0 by 0.6 cm. Scar two was located on the anterior left knee and was 6.5 x 0.6 cm. Scar three was located on the medial aspect of the anterior left knee and was 0.6 x 0.5 cm. Scar four was located on the medial aspect of the anterior knee, below scar three, and was 2.0 x 1.2 cm. The area of the combined superficial non-linear scars was 32.19 square cm, less than 144 square inches (929 square cm). To resolve the discrepancy of how many scars the Veteran actually has, the Veteran was afforded a new VA examination in May 2016. At that time, the examiner determined that the Veteran had four superficial non-linear scars that were stable. Scar one was 0.5 X 0.6 cm, scar two was 1.5 X 0.8 cm, scar three was 1 X 0.8 cm, and scar four was 8 X 1.0 cm. However, the examiner found that only scar four was painful. Based on the above evidence, the Board finds that entitlement to a disability evaluation in excess of 10 percent must be denied. To the extent that there is conflicting evidence has to how many scars the Veteran actually has, even assuming she has four, the maximum number of scars reported, the area of these combined superficial non-linear scars is less than 144 square inches (929 square cm), so a compensable evaluation cannot be awarded under Diagnostic Code 7802. None of the scars is deep and non-linear, so Diagnostic Code 7801 is not applicable, and there is no evidence that the Veteran's scar causes any functional impairment; therefore an evaluation under Diagnostic Code 7805 is not appropriate. Finally, the Board notes that the preponderance of the evidence supports a finding that, at most, one of the Veteran's scars is painful. As an initial matter, the Board notes that there does not appear to be any objective evidence that the Veteran's scar or scars are painful to touch- there are only the Veteran's subjective claims that her scar is tender and at several VA examinations she actually denied any pain. Only one VA examination describes four painful scars, while all other examinations report either one or none. For all the above reasons, a disability evaluation in excess of 10 percent for the Veteran's service connected left knee scar must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). Depression Finally, the Veteran is seeking a higher disability evaluation for her service connected depression. The Veteran's depression was assigned an initial 10 percent evaluation, which was increased to 30 percent effective May 1, 2014. The Veteran's depression is rated under the General Rating Formula for Mental Disorders, found at 38 C.F.R. § 4.130 (2017). A 10 percent evaluation is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Id. A 30 percent evaluation is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self -care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss(such as forgetting names, directions, recent events). A 50 percent evaluation is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficult establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2017). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2017). An August 2010 VA Mental Health Consult reflects that the Veteran was seen seeking to restart medication for symptoms of mild depression related to pain and functional limitations due to her service connected low back and left knee disabilities. She described some down feelings, but denied persistent down mood, as well as some fluctuations in energy without manic symptoms or impulsivity. She denied helplessness or hopelessness. Sleep and appetite were okay. She reported good family and community support and did not desire therapy at that time. No impairment of thought processes was noted. Judgement and insight were intact. The Veteran denied suicidal or homicidal ideations. The Veteran was diagnosed with depression, not otherwise specified, and a GAF score of 65 was assigned. The Veteran was afforded a VA examination in September 2011. At that time, the Veteran described feeling anger and sadness that she is no longer able to participate in physical activities she enjoys because of her disabilities, which were somewhat relieved with medication. However, she reported that she is sleeping fairly well and that her appetite was good. She denied feelings of hopelessness or helplessness, and described at most mild anhedonia. The Veteran had no symptoms of hypomania or mania. She also denied any history of auditory or visual hallucinations or delusions and none are apparent on examination. She reported that because of her sadness, she tends to isolate herself and does not have much of a social life. However, she did report going to church once or twice a month. She stated that she was currently unemployed. She was independent in her activities of daily living. The Veteran was described as alert and full oriented. No impairment of thought processes was observed. Concentration and attention were intact, as were judgement or insight. She was diagnosed with depressive disorder, nos, of mild to moderate severity, and assigned a GAF score of 60. In June 2014, the Veteran submitted a Disability Benefits Questionnaire completed by a private psychologist. The Veteran complained of depression, anxiety, difficulty sleeping, flattened affect, difficulty adapting to stressful circumstances. She felt that her medications offered little relief for her symptoms. The Veteran was reportedly working part-time. She described herself as socially isolated and withdrawn, with difficulty establishing and maintaining relationships. However, she did report that she has a significant other and that she has a sister and friends who help her. The examiner characterized the Veteran's attention as normal, but concentration appeared variable. She complained of increased trouble with short-term memory; she struggles to remember basic information. The Veteran's speech flow was delayed. Thought content was appropriate and organization of thought was goal-directed. There was no report of overt hallucinations. Her fund of knowledge, intellectual ability, and capacity for abstraction appeared to be below average. However, the Veteran was described as vague in her responses to the examiner, as well as irritable and despondent. The examiner diagnosed the Veteran with depressive disorder, NOS, which she characterized as resulting in occupational and social impairment with deficiencies in most areas. A GAF score of 50 was assigned. In September 2015, the Veteran was afforded another VA examination. At that time, she complained that her pain has worsened in past few years, which has resulted in her not being able to do as many things, or be active at all, which has negatively affected her mood. The Veteran reported that she lives alone, but has been in relationship for 8 months. She reported spending most of her time at home, watching TV and movies. She was agitated, easily irritable, emotionally detached, and when in pain pushes her girlfriend away. She had a depressed mood most days, including crying spells. She described occasional feelings of hopelessness and suicidal ideation without intent or plan. She reported mild benefits from medication, but only minimal relief. She spent time with family a couple of times per week. She used to attend church, but stated that she is no longer able to due to difficulty sitting for extended time. She reported that she is currently unemployed. The Veteran was diagnosed with Major Depressive Disorder, which the examiner stated would result in reduced reliability and productivity. The examiner opined that the Veteran's depression would not affect her employment and that her difficulty working was due to her physical disabilities. Based on the above evidence, the Board finds that an initial disability evaluation in excess of 10 percent is not warranted. The preponderance of the evidence shows that while the Veteran suffered from symptoms of depression, she denied persistent low mood. She reported good sleep and appetite, denied feelings of helplessness and hopelessness, and denied suicidal ideations. She also reported a positive response to her medications. Additionally, although she reported some social isolation, she also described good support from her family and community. After May 1, 2014, the Board finds that there is evidence of worsening symptoms of depression that more closely approximate the criteria for a 50 percent disability rating, due to persistent depression with crying spells, agitation and irritability, sleep disturbances, impaired concentration and short term memory, hopelessness, and suicidal ideations without intent or plan. However, the Board finds that disability evaluation in excess of 50 percent is not warranted. The preponderance of the evidence does not establish that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as, for example: obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; or neglect of personal appearance and hygiene. Id. Despite the Veteran's mood disorder, the preponderance of the evidence does not support a finding that the Veteran's though processes were characterized by the type of severe impairment contemplated by a higher schedular rating. The record reflects that the Veteran's judgement and insight have remained intact throughout the period on appeal and that her thought processes are logical and goal-directed. The Veteran has been appropriately oriented and there is no evidence of hallucinations, delusions, or other psychosis. She has been capable of independent living and there is no evidence that she is considered a danger to herself or others. Additionally, although the Veteran reports that she is socially isolated, she also reports interacting on a regular basis with her family and significant other. In conclusion, an initial disability evaluation in excess of 10 percent for the Veteran's service connected PTSD is denied, but a disability evaluation of 50 percent, but no greater, is granted from May 1, 2014. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). TDIU The Veteran has also raised the issue of entitlement to a total disability evaluation due to individual unemployability. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155 (2012). "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. § 4.1 (2017). A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). Here, the Veteran has meets this criteria. The issue is whether the Veteran's service-connected disability or disabilities preclude her from engaging in substantially gainful employment (i.e., work that is more than marginal, permitting him to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether a veteran is entitled to a TDIU, neither non-service connected disabilities nor advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). See also Fanning v. Brown, 4 Vet. App. 225 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The test of individual unemployability is whether a veteran, as a result of her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with her level of education, prior work experience, and training. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Court clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that a disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, 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. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether she is capable of performing the physical and mental acts required by employment, not whether she can find employment. The evidence regarding the Veteran's employability is somewhat conflicting. It appears that the Veteran has worked on either a full or part-time basis during part of the period on appeal as a mechanic and then a bus driver. M.S., who works as the Director of Transportation of the school district employing the Veteran noted in a February 2014 letter that the Veteran works fifteen to twenty hours a week on average, but frequently misses work because of medical appointments at the VA hospital. The record also reflects that the Veteran has a degree of some kind in an IT field, but accounts vary as to whether this is a bachelor's or associate's degree and it does not appear that the Veteran performed any work in the IT field during the period on appeal. An April 2012 VA examiner concluded that the Veteran's physical disabilities would not preclude sedentary employment, while a September 2015 VA examiner concluded that the Veteran's depression would not prevent employment and an April 2012 VA examiner opined that the Veteran would be able to perform employment that was repetitive and did not require extended concentration and memory. However, it is unclear to the Board what real-world employment opportunities, if any, would actually meet this criteria, and in July 2017, the Veteran submitted an evaluation from a private vocational expert, S.B., who concluded that the Veteran was unemployable. She opined that the Veteran's current employer, where she works on a part-time basis, is atypically tolerant of the Veteran's frequent absences due to her service connected disabilities, so much so that she felt the Veteran should be considered to work in a sheltered setting and would be unable to work full time in a normal employment setting. Considering all the available evidence, the Board finds that it is at least in equipoise regarding whether the Veteran is unemployable due to her service connected disabilities. Accordingly, the benefit of the doubt is resolved in the Veteran's favor and entitlement to TDIU is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a disability evaluation in excess of 60 percent for service connected degenerative disc disease of the lumbar spine is denied. Entitlement to a disability evaluation in excess of 30 percent for service connected residuals of a left knee injury, status post ACL reconstruction with central one-third patellar tendon graft and partial lateral meniscectomy is denied. Entitlement to a disability evaluation in excess of 10 percent for service connected degenerative arthritis of the left knee is denied. Entitlement to a disability evaluation in excess of 10 percent for a left knee scar is denied. Entitlement to a disability evaluation in excess of 10 percent for service connected depression prior to May 1, 2014 is denied. Entitlement to a disability evaluation of 50 percent, but no greater, for service connected depression is granted from May 1, 2014. Entitlement to TDIU is granted. REMAND The Veteran is also seeking entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran was afforded a VA audiological evaluation in May 2010, which determined that the Veteran did not meet the criteria for a current hearing loss disability; however, more than seven years have passed since the Veteran was last afforded a VA examination and there are indications in the record that the Veteran's hearing has worsened since that time. Accordingly, on remand, the Veteran should be afforded a new VA examination of her hearing loss disability. As the Veteran's tinnitus claim is potentially related to her hearing loss claim, that issue is also remanded. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination. The examiner should note any functional impairment caused by the Veteran's hearing loss and tinnitus, including a full description of the effects of her disability upon her ordinary activities, if any. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's hearing loss and tinnitus had onset in service or were caused or permanently aggravated by the Veteran's active military service. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of her disability. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs