Citation Nr: 1801360 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-34 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased initial rating for lupus erythematosus, rated 30 percent prior to December 31, 2011, and 60 percent as of December 31, 2011. 2. Entitlement to a rating higher than 10 percent for a left knee disability based on limitation of motion, prior to March 6, 2017. 3. Entitlement to a rating higher than 10 percent for a left knee disability based on instability, prior to March 6, 2017. 4. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Zi-Heng Zhu INTRODUCTION The Veteran served on active duty from March 1977 to October 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in November 2011 and August 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A June 2017 rating decision assigned a 100 percent rating for a left total knee replacement, effective March 6, 2017, to May 1, 2018, under Diagnostic Code . That rating will expire May 1, 2018, and the disability must be rated at that time. However, a 100 percent rating is currently in effect. Therefore, only ratings prior to March 6, 2017, for the left knee are currently before the Board. FINDINGS OF FACT 1. Prior to March 6, 2017, a left knee disability was manifested by painful motion with range of motion, at worst, limited to flexion of 40 degrees, and extension of 2 degrees, with no indication of ankylosis or instability. 2. For the entire claim period, lupus required constant or near-constant systemic treatment with topical corticosteroids, and manifested with a skin condition which covered over 40 percent of the entire body surface, but did not involve exacerbations that produced severe impairment of health. 3. Prior to March 6, 2017, the Veteran was gainfully employed. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for a left knee disability, prior to March 6, 2017, have not been met. 38 U.S.C. §1155 (2012); 38 C.F.R. §4.71a, Diagnostic Code 5260 (2017). 2. The criteria for an increased rating in excess of 10 percent for left knee instability, prior to March 6, 2017, have not been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§4.3, 4.71(a), Diagnostic Code 5257 (2017). 3. The criteria for an increased rating of 60 percent, but not higher, for lupus, as of November 2, 2011, have been met. 38 U.S.C. §§1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§4.88b, Diagnostic Codes 7809-7806 (2017). 4. The criteria for a rating in excess of 60 percent for lupus have not been met. 38 U.S.C. §§1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§4.88b, Diagnostic Code 6350 (2017). 5. The criteria for TDIU, prior to or as of March 6, 2017, have not been met. 38 U.S.C. §1155 (2012); 38 C.F.R. §§3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate the claims by letter during the course of the appeal. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matters have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, and statements and testimony in support of the claims. The development requested by the previous remand has been substantially completed. The Board finds there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. When VA provides an examination or opinion, the examination or opinion must be adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining an examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2017). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent laws and regulations and to adjudicate the claims would not cause any prejudice to the appellant. Increased Ratings Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in rating disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified 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. For the application of the schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a Veteran's disability claim may require ratings in accordance with changes in laws, medical knowledge, and physical or mental condition. It is thus essential, both in the examination and in the rating of disability, that each disability be viewed in relation to its history. 38 U.S.C. §1155 (2012); 38 C.F.R. §4.1 (2017). The Board will consider entitlement to staged ratings to compensate for times during the pendency of the appeal when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately compensate the elements of disability present. 38 C.F.R. §4.2 (2017). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994). Rating disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. §4.14 (2017). Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board may discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In regard to rating claims involving the musculoskeletal system, a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. §4.40 (2017). The factors of disability reside in reductions of normal excursion of movements in different planes and ratings should consider (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.), (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.), (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.), (d) excess fatigability, (e) incoordination or impaired ability to execute skilled movements smoothly, and (f) pain on movement, swelling, deformity or atrophy of disuse and instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. 38 C.F.R. §4.45 (2017). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded. Schafrath v. Derwinski, 1Vet. App. 589 (1993). Pain itself does not rise to the level of functional loss as contemplated by VA regulations, but pain may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Traumatic arthritis is rated pursuant to the criteria found in Diagnostic Code 5010 of the Schedule, which directs the examiner to rate traumatic arthritis pursuant to the criteria for degenerative arthritis found in Diagnostic Code 5003. 38 C.F.R. § 4.71a (2017). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each 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 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1)(2017). Diagnostic Code 5260 provides a 30 percent rating where knee flexion is limited to 15 degrees, a 20 percent rating where limited to 30 degrees, a 10 percent rating where limited to 45 degrees, and 0 percent rating where limited to 60 degrees. 38 C.F.R. §4.71a, Diagnostic Code 5260 (2017). Diagnostic Code 5261 provides a 50 percent rating where knee extension is limited to 45 degrees, a 40 percent rating where limited to 30 degrees, a 30 percent rating where limited to 20 degrees, a 20 percent rating where limited to 15 degrees, a 10 percent rating where limited to 10 degrees, and a 0 percent rating where limited to 5 degrees. 38 C.F.R. §4.71a, Diagnostic Code 5261 (2017). Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. §4.71a, Diagnostic Code 5257 (2017). For dislocated semilunar cartilage with frequent episodes of locking pain and effusion into the joint a 20 percent rating is warranted. 38 C.F.R. §4.71a, Diagnostic Code 5258 (2017). For symptomatic disability following removal of semilunar cartilage at 10 percent rating is assigned. 38 C.F.R. §4.71a, Diagnostic Code 5259 (2017). A knee disability may warrant separate ratings based on evidence showing compensable limitation of flexion, compensable limitation of extension, compensable instability, or compensable semilunar cartilage symptomatology. However, a separate rating can only be assigned where there is separate compensable symptomatology. VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. However, that is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. §4.3 (2017). Left Knee Disability Resulting in Limitation of Motion With regard to the claims for an increased rating for a left knee disability based on limitation of motion, the Veteran asserts that the left knee disability is, and has been, more severe than contemplated by the 10 percent ratings for both range of motion and insatiability. During the claims period, the Veteran attended two VA examinations to assess the nature and severity of the left knee disability in July 2011 and October 2016. In a July 2011 VA examination of the left knee, the examiner noted the Veteran complained of constant pain in the left knee and leg, that shot up and down the entire leg. The Veteran described the pain as aching, oppressing, and sharp. On examination, the examiner noted the Veteran had an abnormal gait, which was in essence a limp on the left side due to pain in the left knee. Further examination noted effusion, with weakness and some deformity. There were no signs of edema, instability, abnormal movement, tenderness, redness, heat, guarding of movement, malalignment, or drainage. Subluxation and instability were not detected on testing. However, examination noted traumatic genu recurvatum in the left knee. Range of motion studies found left knee motion from 2 to 80 degrees with pain on flexion at 80 degrees. Repeat motion testing reveals no additional limitation of range after repetitive testing. X-ray diagnostics revealed degenerative joint disease of the left knee. In an October 2016 VA examination, the Veteran was again examined to assess the nature and severity of the left knee disability. The examiner noted the Veteran reported no flare-ups, and reported issues with pain and swelling, especially after prolonged walking and standing. On examination, the Veteran was diagnosed with degenerative joint disease of the left knee. Testing for range of motion of the left knee noted flexion limited to 40 degrees, and extension to 0 degrees. Repetitive motion testing found no diminished range of motion after three repetitions. While there was pain demonstrated on examination, no pain was objectively noted on weight bearing. The only additional factor noted by the examiner to have affected the disability was swelling. Muscle strength testing found normal results with no evidence of atrophy, and further examination noted no ankylosis. Specific joint stability testing found no joint instability in the left knee, with normal results for all stability tests performed. The examiner noted the Veteran's use of a brace and crutches on a regular basis. A thorough review of the post-service VA medical records shows no further objective tests for range of motion that show any limitation of the left knee worse than that found on examination. While the records show treatment of such left knee degenerative arthritis, those records do not provide any objective testing results for range of motion. Those medical records also do not identify or diagnose any additional conditions of the left knee that would warrant any higher or separate rating. The Veteran's current left knee disability is rated 10 percent for limitation of motion, with a separate rating of 10 percent for instability. Under the Diagnostic Code for range of motion, flexion of at least 30 degrees, or extension of 15 degrees, is needed to warrant the next higher rating of 20 percent. 38 C.F.R. §4.71a, Diagnostic Codes 5260, 5261 (2017). Here, the examinations of record are the only medical evidence which indicates objective testing of the left knee range of motion, and in both examinations, the Veteran's range of motion does not meet the minimum criteria for a higher rating. In the July 2011 VA examination, objective testing found flexion limited to 80 degrees and extension limited to 2 degrees. In the October 2016 VA examination flexion was limited at 40 degrees, with 0 degrees of extension. In both examinations, repetitive testing found no further limitation of motion for functional loss. While the limitation of flexion met the criteria for a 10 percent rating, the limitation of extension did not meet the criteria for a compensable rating, which requires limitation of extension to 10 degrees. Consequently, the Board finds that limitation of motion does not warrant a higher rating in excess of his current 10 percent rating under the diagnostic code for limitation of flexion. The Board also finds that higher or separate rating is warranted, even with consideration of painful motion and other factors. The level of additional limitation alleged on flare-ups is not shown to be of such frequency or duration to warrant a finding of limitation of motion that warrants any higher or separate rating. The Board has also considered any additional disabilities due to pain, weakness, fatigability, or incoordination of a joint that would more nearly approximate a disability picture warranting a higher rating. 38 C.F.R. §§4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). While pain was noted to be present on VA examinations and medical records, there has been no significant change of function or range of motion on repetition identified on any examination of the left knee. Therefore, functional loss due to pain is rated at the same level where motion is impeded. A range of motion may be possible beyond the point when pain sets in, but for rating the disability, only to the extent pain limits motion is considered. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes that the Veteran has been inconsistent with reporting flare-ups. During the October 2016 VA examination, the examiner noted that the Veteran reported no flare-up. The July 2011 VA examination noted no explicit mention of flare-ups. However, regardless of the Veteran's assertion of functional and range of motion loss during flare-ups, the Board finds that lay assertion cannot be considered competent to adequately assess the specific degree of limitation with regard to the objective standards of the Diagnostic Code. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Likewise, the Veteran, while has been consistent in asserting that his condition is much more limiting than contemplated by the current rating, he cannot competently speak to the specific objective degree in which is required for the assignment of a higher rating. The evidence does not show that any additional factors cause functional limitation that would result in a higher rating for limitation of flexion, which requires limitation to 30 degrees to warrant a higher rating. The evidence also does not show limitation of extension due to other functionally limiting factors to 10 degrees, as required for a separate compensable rating. Here, both VA examiners noted no additional limitation of motion after repetitive testing, and neither identified any further functional loss due to pain, weakness, excess fatigability, or incoordination. The most recent VA examiner was not able to corroborate the limitation on flare-up as the Veteran was not experiencing flare-up at the time of the examination. However, the limitation of flexion shown on examination was to 40 degrees, even after repetitive motion testing. The Board finds the evidence offered by those medical professionals to be more probative. Therefore, the current rating appropriately compensates the Veteran for functional loss due to knee pain. 38 C.F.R. §4.59 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board has considered other potentially applicable Diagnostic Codes relating to the left knee. However, the record does not show evidence of ankylosis (Diagnostic Code 5256), semilunar cartilage, dislocation or removal (Diagnostic Codes 5258 or 5259), or impairment of the tibia and fibula (Diagnostic Code 5262) during the periods on appeal. While the Board does acknowledge that the Veteran was diagnosed with genu recurvatum (Diagnostic Code 5263), the maximum rating for that disability would only be 10 percent, thus not providing for a higher rating. While the Veteran has traumatic genu recurvatum, the evidence does not show weakness and insecurity in weight-bearing were objectively demonstrated as would be required for a compensable rating for genu recurvatum. Strength testing was normal on examination and in the medical records. The Board finds that the preponderance of the evidence is against a claim for a rating in excess of 10 percent for a left knee disability based on limitation of motion. The evidence shows that the Veteran's disability does not warrant a higher rating or separate rating under any other Diagnostic Codes for rating the knee, other than Diagnostic Code 5257 which will be considered below. As the preponderance of evidence is against the finding for a higher rating, the claim must be denied. 38 U.S.C. §5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Knee Disability Resulting in Instability With regard to the separate rating for left knee instability, the Veteran is currently rated 10 percent under Diagnostic Code 5257. 38 C.F.R. §4.71a (2017). A Veteran who has arthritis as shown by x-ray and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97 (1997); 62 Fed. Reg. 63,604 (1997). Under Diagnostic Code 5257, moderate recurrent subluxation or lateral instability warrants a 20 percent disability rating. Slight recurrent subluxation or lateral instability warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). 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, to the end that its decisions are equitable and just. 38 C.F.R. §4.6 (2017). The use of terminology such as severe by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§4.2, 4.6 (2017). In both the July 2011 and October 2016 VA knee examinations, both examiners noted no objective evidence of instability in the left knee, to include any evidence of recurrent subluxation or instability. On examination, both VA examiners noted testing for instability on all levels to include the anterior and posterior cruciate ligament, and the medial and lateral collateral ligaments. All stability tests returned normal findings. The Board finds that those VA examinations are of high probative value, and constitute the most probative evidence of record because of the training of the examiners. The Board finds that evidence does not show that the Veteran has a moderate level of left knee instability, as required for a 20 percent rating. The Board acknowledges the Veteran's statements that his left knee is unstable and gives out. During the examinations the Veteran was noted to be using a knee brace and cane on a regular basis. However, while the Veteran is competent to report symptoms observable to a lay person, he is not considered competent to determine the actual degree of disability of the left knee as it is contemplated by the appropriate Diagnostic Code, and wether recurrent lateral instability or subluxation is shown. 38 C.F.R. §4.71a (2017). The Veteran does not possess the medical training or expertise needed to determine whether the objectively observed level of left knee instability is more accurately described by the 20 percent rating criteria or meets the criterion to be moderate. An objective examination, as conducted by the VA examiners, is more probative in assessing the degree of the Veteran's impairment due to any instability. Therefore, as the opinions and testing demonstrate little to no instability in any aspect of the left knee, the Board must find those findings to be more demonstrative of the Veteran's actual disability, and in turn find that the left knee disability does not warrant a higher rating based on recurrent instability. Accordingly, the Board finds that entitlement to a rating in excess of 10 percent for left knee instability must be denied because the instability of the Veteran's left knee is not more closely approximated by the criteria for a higher rating under the applicable Diagnostic Code of moderate recurrent lateral instability. 38 C.F.R. §4.7 (2017). Therefore, the preponderance of the evidence is against this claim, and the claim for an increased rating must be denied. 38 C.F.R. §4.3 (2017). Other Considerations The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1) (2017). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). The record shows that the manifestations of the knee disability are contemplated by the schedular criteria. There is no indication that the average industrial impairment from the Veteran's knee disability is in excess of that contemplated by the assigned ratings. Higher ratings are available for more severe levels of impairment, but the Veteran does not meet the criteria for higher ratings. The evidence does not show frequent hospitalizations, beyond that anticipated by the assigned ratings. The evidence does not show marked interference with employment due to the knee disabilities. Therefore, the Board finds that referral for extra-schedular consideration is not warranted. Lupus Both before and as of December 31, 2011, the Veteran asserts that lupus has been more severe than that contemplated by the assigned ratings. The Veteran was provided two VA examinations for lupus during the pendency of the claim in February 2013 and September 2016. Additionally, the Veteran has submitted private medical records and lay statements. At a February 2013 VA examination, the examiner noted subacute cutaneous lupus erythematosus on the ears, lips, mouths, hands, feet, scalp, and upper and lower extremities. Affected areas of the mouth and lips were noted to cause ulcers and scaling, and affected scalp areas caused scarring alopecia. The examiner determined that these affected areas covered more than 40 percent of the Veteran's body surface, and between 5 and 20 percent of the all exposed area. However, the affect skin areas were not considered unstable, painful, or to cause any disfigurement of the head, face, or neck, with related scars less than 39 square centimeters. The examiner note the Veteran's condition required constant or near constant application of topical corticosteroid treatments. Additionally, the examiner noted no other symptoms or manifestations of lupus attributable to an autoimmune disease, to include hematologic, lymphatic, pulmonary, cardiac, neurological, renal, obstetric, gastrointestinal, or vascular manifestations. The examiner noted no exacerbations of the disease and no severe impairment of the Veteran's health. At a September 2016 VA examination, the examiner noted diagnoses of both subacute cutaneous lupus erythematosus, and systemic lupus erythematosus. On physical examination, the VA examiner found sharp improvements in the Veteran's condition with specific regard to the skin condition affected by lupus. Specifically, the examination report for the skin noted only 20 percent of the Veteran's surface body area showed some hypopigmentation, with only 5 to 20 percent of exposed area showing such symptoms. The examiner noted the Veteran's condition required constant use of immunosuppressive medication. However, the examiner noted that use had made the skin condition quiescent. With regard to other manifestations of lupus, a review of the VA examination report for all autoimmune disease shows that the Veteran's condition has not manifested in any other body system impairment besides the skin. Like the previous examination, lupus seemed to be contained to dermatological manifestations. Finally, the examiner noted no exacerbations of an autoimmune disease, including SLE, that produced severe impairment of the Veteran's health. Moving to the Veteran's claims for an increased rating, the Board notes that the Veteran is currently rated under 38 C.F.R. §4.118, Diagnostic Code 7809, for discoid lupus erythematosus, which directs VA to rate under Diagnostic Codes 7800-7806 or Diagnostic Code 6350. Separate ratings under Diagnostic Code 6350 and Diagnostic Code s 7800-7806 are not permitted. The Veteran's 60 percent rating is assigned pursuant to 38 C.F.R. §4.118, Diagnostic Code 7806, which requires dermatitis or eczema on more than 40 percent of the entire body, more than 40 percent of exposed areas affected, or constant or near-constant use of systemic therapy, such as corticosteroids or other immunosuppressive drugs required during the last 12 months. Under that Diagnostic Code, a 60 percent rating is the highest possible schedular rating available. The only available higher schedular ratings are found under 38 C.F.R. §4.118, Diagnostic Code 7800 and 38 C.F.R. §4.88b, Diagnostic Code 6350. Under 38 C.F.R. §4.118, Diagnostic Code 7800, an 80 percent rating may be assigned based on evidence of visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips); or six characteristics of disfigurement. The eight characteristics of disfigurement, for purposes of evaluation under §4.118, are: (1) a scar of 5 or more inches (13 or more centimeters) in length; (2) a scar of at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of a scar elevated or depressed on palpation; (4) a scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding 6 square inches (39 square centimeters); and (8) skin indurated and inflexible in an area exceeding 6 square inches (39 square centimeters). 38 C.F.R. §4.118, Diagnostic Code 7800, Note (1). Alternatively, under 38 C.F.R. §4.88b, Diagnostic Code 6350, a 100 percent rating is available for systemic lupus erythematosus which is acute, with frequent exacerbations, producing severe impairment of health. The Veteran established service connection for lupus in an August 2013 rating decision which assigned a 30 percent rating, effective November 2, 2011. The Veteran contested that rating and a 60 percent rating was assigned in February 2017, effective December 31, 2011. The rationale for assigning that effective date was based on medical evidence of record documenting the Veteran's prescription for Plaquenil, an immune-suppressive drug, which the Veteran required on a constant or near constant basis. As an initial matter, the Board must determine whether an increased rating is warranted in excess of 30 percent for the Veteran's Lupus, between November 2, 2011, and December 31, 2011. The Board finds that the evidence of record shows that for that short period the Veteran's condition not only exemplified no changes, but also that based on skin manifestations alone warranted a 60 percent rating under the appropriate diagnostic code. The Board notes that a review of the available records between this two month period shows absolutely nothing that allows the Board to recognize that a change, for better or worse, occurred. While no VA examinations were conducted during that time, no objective evidence from private or VA medical records demonstrate any objective criteria which would demonstrate that the Veteran's condition was not similarly severe two months prior to December 31, 2011. Additionally, medical evidence from prior to that period, to include from July and August 2011 shows on and off flares of the lupus skin condition, to include scaly plaque, and hyperpigmentations in similar areas as denoted in the, later, February 2013 VA examination, to include the back, upper and lower extremities, face, ears, and scalp. Finally, the Board notes the closest VA examination that speaks to the Veteran's lupus from February 2013, demonstrate that the Veteran's lupus manifested skin condition affected over 40 percent of the Veteran's body. As such, considering such evidence, the Board finds that the Veteran's condition warrants a higher 60 percent rating for this short period from November 2, 2011, to December 31, 2011. Therefore, the Veteran's claim must be granted prior to December 31, 2011, as a 60 percent rating was warranted. A rating of 60 percent is the highest available under the current Diagnostic Code. Specifically, a schedular rating in excess of 60 is only available under Diagnostic Code 7800 and 6350. Those Diagnostic Codes require evidence of visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips); or six characteristics of disfigurement, to obtain an 80 percent rating under 38 C.F.R. §4.118, Diagnostic Code 7800;or evidence of systemic lupus erythematosus with frequent exacerbations, producing severe impairment of health, to achieve a 100 percent rating under 38 C.F.R. §4.88b, Diagnostic Code 6350. From the onset, the Board finds that neither criteria are met for a higher rating is fulfilled by the current nature and severity of lupus. Specifically, with regard to an 80 percent rating based on disfigurement of the head face, the Board notes that neither VA examinations in February 2013 and September 2016, shows any evidence of what can be described as gross distortion or asymmetry to three or more of the paired features on the Veteran's face. The Board acknowledges that in both examinations, some skin disability was identified on the head and face, to include affecting areas such as the ears, lips, mouth, and scalp, which may be considered as paired sets as contemplated under the 38 C.F.R. §4.118, Diagnostic Code 7800. However, the affected areas were only noted to have some hypo- or hyper-pigmentation, and some scaling or ulcers. In fact, the February 2013 VA examiner explicitly noted that no skin issues related to the Veteran's head or face were severe enough to be considered disfigurement, with no evidence of any scaring or hypo- or hyper-pigmentation measuring in excess of 39 square centimeters. A review of the additional evidence of record to include the Veteran's lay statements and other medical records both VA and private, does not show any additional supporting evidence of sufficient deficiencies to the Veteran's face or head. While the Veteran has continued to complain that his condition are worse than contemplated by the current rating, he has not presented evidence, medical or otherwise, to demonstrate objective complaints that would fulfill those criteria set by the higher disability rating under Diagnostic Code 7800. The Board has reviewed the Veteran's personal statements, including pictures of the Veteran's face and body affected by lupus manifested as a skin condition. However, even viewing those contentions does not demonstrate sufficient evidence specific to the criteria under Diagnostic Code 7800 for disfigurements or scarring of the head and face. Therefore, the Board finds that the preponderance of the evidence is against a finding that the skin disability due to lupus has risen to the severity that would warrant a higher 80 percent rating under Diagnostic Code 7800. The evidence does not show six of the characteristics of disfigurement and the examination findings are against a showing of six characteristics of disfigurement. Moving to 38 C.F.R. §4.88b, Diagnostic Code 6350, the Board notes that a during both VA examination reports from February 2013 and September 2016, both examiners explicitly found that the Veteran did not have acute exacerbations of any kind, and that there was no evidence that any acute exacerbations, if applicable, caused any severe impact to the Veteran's health. The Board also notes that a review of the Veteran's lay statements does not show any evidence or complaints of exacerbations of lupus that severely affect the Veteran's health. A review of the various private and VA medical records does not show any evidence of severe exacerbations that were noted due to lupus. Therefore, as there is no evidence of any acute exacerbations severe enough to cause severe health impairment during any part of the claim period, the claim for a higher rating must be denied. In arriving at this conclusion, the Board has considered the various medical opinion letters and lay statement submitted by the Veteran which spoke to service-connected disabilities affecting his work. Specifically, the Veteran submitted a July 2012, medical opinion letter from Dr. S.N., which noted that the Veteran was not able to work full time due to lupus and knee disabilities. However, the examiner did not identify any related symptoms or manifestations that prevented the Veteran from work, or specify that the condition was caused by an exacerbation of lupus. The examiner also did not specify what aspects of the Veteran's work that the Veteran could not accomplish. That such letter was submitted prior to both VA examinations that subsequently noted that the Veteran had no exacerbations, and essentially no functional impact on the Veteran's work. Accordingly, the Board finds less probative value in that evidence with regard to the increased rating claim, and finds that the preponderance of evidence remains against the Veteran's claim for a higher rating. Based on the foregoing, and considering all applicable Diagnostic Codes, the Board finds that a rating in excess of 60 percent for discoid lupus erythematosus with systemic lupus erythematosus is not warranted. The Board observes that the medical examinations and medical treatment records note the use of a corticosteroid to treat the dermatologic manifestations of the Veteran's lupus during this period. The evidence does not show medical evidence of visible or palpable tissue loss, gross distortion, asymmetry of three or more features, or six or more characteristics of disfigurement, or exacerbations, with severe impairment of health, to warrant a high rating under 38 C.F.R. §4.118, Diagnostic Code 7800-7806 or 6350. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. §5107(b) (2012); 38 C.F.R. §3.102 (2017). TDIU A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. 38 C.F.R. §4.16(a) (2017). The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency the service-connected disabilities make the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. §4.16(a) (2017). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Rating boards are to refer to the Director of the Compensation Service for consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements. 38 C.F.R. §4.16(b) (2017). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §3.340(a) (2017). A Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. §4.19 (2017). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). With regard to the period prior to May 6, 2017, the Board finds that the Veteran's service-connected disabilities meet the percentage requirements of 38 C.F.R. § 4.16(a) for consideration for TDIU. The Veteran's rating for lupus was increased to a 60 percent, effective in November 2011, by this Board decision. Therefore, during the entire relevant period the Veteran has had one service-connected disability rated 60 percent, which meets the threshold schedular requirements for consideration for TDIU. 38 C.F.R. § 4.16(a) (2017). However, in reviewing the claims file and evidence of record with regards to employment, the Board must finds that the preponderance of evidence is against a finding that the Veteran's service-connected disabilities have made him unable to secure or follow a substantially gainful occupation. The evidence shows that the Veteran was employed during the entire claims period prior to March 6, 2017. No contention has been made by the Veteran that has stopped working, nor does the evidence suggest that. In fact, in the Veteran's initial claim, submitted in November 2011, and in all subsequent statements during the claims period, the Veteran noted that his left knee and lupus disabilities caused him difficulty at work, but did not preclude him from maintaining his actual employment. In a September 2016 Application for Unemployability, VA Form 21-8940, the Veteran noted that he was employed at the same employer until that same year in 2016. The Veteran also submitted a September 2016 statement from a supervisor noting a concern for the Veteran's health, all while noting that he remained employed and still worked. The supervisor noted having to assist the Veteran at his job. Finally, of record is also a doctor's note from a physician requesting that the Veteran be excused from work for the period from January 6, 2017, to January 7, 2017. Further review of the record indicates that the Veteran has been working during the entire claims period prior to and subsequent to March 6, 2017. The Board notes that incidental notes from medical records from both the VA and private care have noted the Veteran was employed, albeit in some instances noting that the Veteran may have to miss work during various medical emergencies, such as a May 2012 hospitalization for acute renal failure. The treating physician noted that the Veteran was actively working, and even documented any potential exposure to chemicals at his place of employment. Accordingly, the Board finds that the preponderance of evidence is against the finding that the Veteran's service-connected disabilities prevent him from obtaining or maintaining gainful employment, as the evidence of record demonstrates that he remained employed for the entire claims period prior to March 6, 2017. Therefore, the Board must find that TDIU is not warranted. In arriving at this conclusion, the Board acknowledges the fact that the Veteran has also submitted evidence of functional loss that interferes with his ability to work. The Veteran submitted a July 2012 opinion letter from Dr. S.N., noting that due to lupus and a left knee disability, the Veteran could not work full time. However, that opinion did not provide any rationale or reasoning with regard to the specific functional losses the prevented the Veteran from working, specific to the Veteran's service-connected disabilities. The Board finds that lack of explanation for a conclusive opinion provides little probative value in light of the evidence that the Veteran was still working at that time. That evidence does not show that the Veteran was unemployable solely due to service-connected disabilities. Finally, there is insufficient evidence that the company the Veteran worked for is considered a sheltered workplace, as it is not shown to be family owned, or of the type in which has made significant exceptions or assistance to the Veteran for him to stay employed at the company. 38 C.F.R. §4.16(a) (2017). The Board notes that the term sheltered workshop is not defined in the regulation applicable to TDIU. However, the Wage and Hour Division of the United States Department of Labor uses the terms sheltered workshop and work center interchangeably to mean a place that has historically provided rehabilitation services, day treatment, training, and/or employment opportunities to individuals with disabilities. Sheltered Workshop, Department of Labor, Wage & Hour Division, Field Operations Handbook, available at http://www.dol.gov/whd/FOH/ch64/64k00.htm (last accessed December 21, 2017). That definition provides some guidance to what the VA regulations may consider a sheltered workplace. Here, the Board finds that the preponderance of evidence is against a finding that the Veteran's current workplace is a sheltered work environment as envisioned by VA regulations. The Veteran noted in the application for a TDIU that he made $30,000 in the past 12 months. The Board notes that income is in excess of the national poverty line defined by the United States Census Bureau, and therefore is not considered marginal employment. Further, while the Veteran's supervisor mentioned having to assist the Veteran on occasion at work due to physical limitations caused by the knees, there is no evidence that any such accommodation rises to a level as to constitute employment in a sheltered or a protected environment. Nor is there evidence that his employer has historically been a place that provides rehabilitation services for people with disabilities, or that there is any other factor which would cause the place of employment to be considered a sheltered work environment, such that he was employed or continued employment solely because of his status as a disabled Veteran, a disabled person, or a family member. Therefore, the Board finds that the workplace is not a sheltered environment, but appears to be providing accommodation for disabilities. The Board notes that considering the wording in the regulation of 38 C.F.R. §4.16(a), goes against any interpretation that the Veteran's current employment as marginal. The term sheltered workshop is placed in the same category as a family business, as examples of a marginal employment or protected environment. The Board finds that the juxtaposition of those terms demonstrates the spirit of that exception contemplates an employment situation more akin to what is offered by a family business, and not, as it is here, supervisors caring for their employees by offering some accommodations. Therefore, the Board finds that the weight of the evidence demonstrates that the criteria for TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. 38 U.S.C. §5107 (2012); 38 C.F.R. §3.102 (2017). Furthermore, the Board notes that the Veteran is currently receiving a period of temporary 100 percent rating for convalescence for the period starting from March 6, 2017, to May 1, 2018, for a total left knee replacement. The Board notes that in the current appeal, the claim for TDIU is moot during the period of temporary 100 percent schedular ratings and therefore, the claim must be denied for the period after May 6, 2017. In any event, the evidence does not show that the Veteran is unemployable due solely to service-connected disabilities other than the left knee disability during the period of 100 percent rating. The analysis above continues to apply as of May 6, 2017 The evidence does not show that lupus and left foot gout make the Veteran unable to follow a substantially gainful occupation such that TDIU would be assigned based solely based on those disabilities as of May 6, 2017. In addition, while an August 2017 statement from the Veteran indicated that planned to consult a physician about whether he should put in for disability benefits, presumably from his place of employment. He stated, "I work long and hard, its time to make a decision." That statement implies that the Veteran continued to work. Therefore, the Board finds that TDIU is not warranted as the evidence does not show service-connected disabilities other than the left knee disability made the Veteran unemployable. ORDER Entitlement to an initial rating of 60 percent, but not higher, for lupus, as of November 2, 2011, is granted. Entitlement to a rating higher than 60 percent for lupus is denied. Entitlement to a rating higher than 10 percent for a left knee disability based on limitation of motion, prior to March 6, 2017, is denied. Entitlement to a rating higher than 10 percent for a left knee disability based on instability, prior to March 6, 2017, is denied. Entitlement to TDIU is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs