Citation Nr: 18150069 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 10-40 328 DATE: November 14, 2018 ORDER Entitlement to an increased schedular rating for left knee instability between November 1, 2009 and July 30, 2012, currently rated as 20 percent disabling, is denied. Entitlement to an increased schedular rating for right knee instability between November 1, 2009 and July 30, 2012, currently rated as 20 percent disabling, is denied. Entitlement to a separate disability rating of 30 percent for limited flexion of the left knee prior to July 30, 2012 is granted. Entitlement to a separate disability rating of 30 percent for limited flexion of the right knee prior to July 30, 2012 is granted. Entitlement to a separate disability rating of 30 percent for chronic sleep impairment associated with the Veteran’s service-connected bilateral knee pain between November 1, 2009 and July 30, 2012 is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) is granted, effective November 1, 2009. Entitlement to an increased rating for patellofemoral syndrome and reflex sympathetic dystrophy (RSD) of the left knee on an extraschedular basis is dismissed. Entitlement to an increased rating for patellofemoral syndrome and RSD of the right knee on an extraschedular basis is dismissed. REMANDED Entitlement to a disability rating in excess of 40 percent for complex regional pain syndrome (CRPS), previously rated as patellar femoral syndrome and RSD of the bilateral knees, since July 30, 2012, is remanded. FINDINGS OF FACT 1. Between November 1, 2009 and July 30, 2012, the symptoms of the Veteran’s service-connected right and left knee disorders included, at most, moderate recurrent subluxation or lateral instability; both knees remained capable of more than 45 degrees flexion and there was no ankylosis of either knee. 2. The evidence is at least evenly balanced that, during flare-ups of her bilateral knee symptoms, the Veteran experienced approximately 334 days in which, due to the effects of extreme pain, bilateral knee flexion was effectively limited to 15 degrees during the period prior to July 30, 2012. 3. Between November 1, 2009 and July 30, 2012, the evidence is at least evenly balanced as to whether the Veteran’s service-connected knee disabilities caused the Veteran to experience chronic sleep impairment. 4. Since November 1, 2009, the Veteran’s service-connected disabilities have prevented her from maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased schedular rating for left knee instability, currently rated as 20 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 2. The criteria for an increased schedular rating for right knee instability, currently rated as 20 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for a separate disability rating of 30 percent, but no higher, for limited flexion of the left knee have been met between prior to July 30, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5260. 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for a separate disability rating of 30 percent, but no higher, for limited flexion of the right knee have been met between prior to July 30, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5260. 5. Resolving reasonable doubt in the Veteran’s favor, between November 1, 2009 and July 30, 2012, the criteria for a separate disability rating of 30 percent for sleep disturbance associated with service-connected knee disabilities have been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5025, 4.130. 6. Since November 1, 2009, the criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.16. 7. Given the Board’s decision to grant a TDIU award effective November 1, 2009, the Veteran’s claims for increased ratings for her left and right knee disabilities on an extraschedular basis are moot. Aronson v. Brown, 7 Vet. App. 153, 155 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to October 1992. In December 2011, she and her mother testified at a videoconference hearing before the undersigned Veterans Law Judge. Procedural Background This case has a long procedural history, initially coming to the Board after the Veteran appealed an August 2009 decision of the Agency of Original Jurisdiction which reduced the ratings assigned to her service-connected knee disabilities from 20 percent to zero percent. After further proceedings, and also after receiving additional medical evidence concerning the Veteran’s diagnosis, the AOJ issued an October 2013 rating decision reclassifying the disability previously rated as patellar femoral syndrome of the knees as Complex Regional Pain Syndrome (CRPS) and assigning a 40 percent rating for CPRS, effective July 30, 2012. In December 2014, the Board vacated the AOJ’s rating reduction, reinstating the 20 percent ratings for the Veteran’s service-connected left and right knee disabilities but – for the period between November 1, 2009 and July 30, 2012 – the Board denied ratings higher than 20 percent for both knees. The Board remanded the issues of TDIU and the issue of whether the Veteran was eligible for a rating higher than 40 percent for CPRS since July 30, 2012. With respect to the issue of TDIU, the Board noted that the evidence suggested that the Veteran “has been unemployable throughout the appeal period of this claim and has presented evidence showing that she is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.” Because, for the relevant period, the Veteran did not meet the schedular rating criteria of 38 C.F.R. § 4.16(a), the Board instructed the AOJ to refer the issue of TDIU to the Director of the Compensation Service for consideration of a potential extraschedular rating. The Veteran appealed the December 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In May 2016, the Court vacated the Board decision denying increased ratings for the left and right knees between November 1, 2009 and July 30, 2012. Citing Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014), the Court found that the Board’s decision failed to adequately address the collective impact of the Veteran’s various service-connected disabilities, particularly the combined effect of her bilateral knee pain and her separate service-connected seizure disorder. The Court’s decision and the appellate briefs for both parties largely concern whether the Board should have referred the knee claims to the Director for consideration of a possible extraschedular rating pursuant to 38 C.F.R. § 3.321(b). In his brief to the Court, the Secretary argued that the Veteran “does not challenge the Board’s assignment of schedular ratings. . . . Therefore, the Court should hold that she has abandoned that issue.” However, the Court’s May 2016 Memorandum Decision does not appear to include a finding that the Veteran had abandoned her requests for increased schedular ratings, instead referring to the issues more generally as “entitlement to a disability evaluation higher than 20% from November 1, 2009, to July 30, 2012, for patellofemoral syndrome (PFS) and reflex sympathetic dystrophy (RSD) of the left and right knees.” Accordingly, this decision will assume that the issues of whether, for this period, the Veteran is eligible for increased schedular ratings for her knees remain part of the appeal. When the Court remanded the knee rating issues back to the Board, the issues of TDIU and an increased rating for CPRS since July 30, 2012 were still the subject of proceedings before the AOJ. In February 2017, the Board remanded the knee issues to the AOJ with instructions to refer them to the Director for potential extraschedular consideration. The Board remanded a separate set of claims (service connection for disabilities of the cervical spine, discogenic radicular pain of the upper extremities, traumatic brain injury, an acquired psychiatric disorder, a request to reopen a previously denied claim for service connection for a disability of the low back, and increased rating claims for service-connected epilepsy focal seizure disorder and headaches) with instructions to the AOJ to issue a statement of the case (SOC). Unlike the knee issues, these claims were only to be returned to the Board if the Veteran filed a timely substantive appeal (VA Form 9). As instructed, the AOJ readjudicated these issues in two separate SOCs, both issued in April 2018, but it appears that the Veteran did not file a Form 9 perfecting her appeal of these issues within 60 days. For this reason, these issues will not be addressed in this decision. In December 2017, the Secretary amended 38 C.F.R. § 3.321(b), abrogating the holding in Johnson which had permitted extraschedular ratings based on the collective impact of multiple disabilities. 82 Fed. Reg. 57,830, 57,835 (Dec. 8 2017). This rule change applies retroactively to cases pending at the time of the amendment, which means it applies to this case and apparently puts to rest at least one of the Court’s criticisms of the vacated December 2014 Board decision in this case. See Thurlow v. Wilkie, No. 16-3633, 2018 U.S. App. Vet. LEXIS 1225 (September 12, 2018). After the Board’s most recent remand, the AOJ obtained new records, arranged for a new VA examination of the Veteran’s knees and lower legs, and referred the extraschedular issues to the Director, who issued a decision denying both an extraschedular rating for the knees under 38 C.F.R. § 3.321(b) and an extraschedular TDIU rating under 38 C.F.R. § 4.16(b). Since the Director has ruled on both questions, the Board now has jurisdiction to conduct a de novo review of both issues. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Schedular Rating for the Knees from November 1, 2009 to July 30, 2012 Rating Criteria Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings – or the assignment different disability evaluations for separate periods of time – may be appropriate when the claimant has appealed the denial of a request for an increase in the rating previously assigned to a service-connected disability. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). There is no specific Diagnostic Code addressing the Veteran’s specific medical diagnoses during the relevant period: patellofemoral syndrome, reflex sympathetic dystrophy (RSD), and CPRS. The Board may rate an unlisted disorder under the rating criteria for a closely related disease or injury in which the functions affected, the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. For service-connected disabilities of knees, the regulations generally authorize the assignment of separate ratings for limited flexion (DC 5260), limited extension (DC 5261) and for instability (DC 5257). For the relevant appeal period, the Veteran has been assigned two 20 percent ratings, once for each knee, pursuant to DC 5257. Under DC 5257, a 20 percent rating is appropriate for moderate recurrent subluxation or lateral instability of the knee. The code authorizes a higher, 30 percent rating, if recurrent subluxation or lateral instability of the knee is severe. Under 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), when evaluating the severity of certain disabilities, including disabilities of the spine, VA is generally required to consider whether the disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell, 25 Vet. App. at 33. VA examination reports for musculoskeletal disabilities must comply with 38 C.F.R. § 4.59 by evaluating range of motion in the affected joint “for pain on both active and passive motion and in weight bearing and nonweight-bearing . . . .” Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Moreover, VA examiners now have the duty to elicit information from the Veteran describing the condition of the relevant joints during “flare-ups” or episodes when the relevant symptoms are at their most severe. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) With respect to the January 2009 VA knees examination report, it is not clear whether the examiner tested the range of motion in the Veteran’s knees on active or passive motion, or in weight bearing or nonweight-bearing. Because of the examiner’s failure to comply with DeLuca, Mitchell, and Sharp, the examination report, by itself, does not provide sufficient information to apply 38 C.F.R. §§ 4.40 and 4.45. The Board has therefore considered whether the duty to assist requires another remand for further development. A new examination, however, would not be very useful in determining the severity of the Veteran's bilateral knee symptoms before July 30, 2012. See 38 C.F.R. § 3.159(d). Under the circumstances of this case, the Board finds that the most effective remedy for the deficiencies of the pre-July 2012 examination reports is to assign a separate rating under DC 5260 based on a interpretation of the Veteran’s hearing testimony describing the nature of her symptoms during flare-ups and the length and frequency of her flare-ups. Factual Background According to the January 2009 report of a VA physician assistant, the Veteran was diagnosed with RSD and experienced some improvement after the implantation of a spinal cord stimulator. In the right knee, the Veteran reported “locking” episodes approximately three times per month, constant effusion, and impaired motion of the knees. In the left knee, her reported symptoms included weekly episodes of “locking” as well as giving way, instability, weakness, decreased speed, and tenderness. The examiner noted pain in both knees. The Veteran’s ability to stand was limited to periods of between fifteen and thirty minutes. She could walk up to 10 yards and intermittently used a walker. In both knees, the Veteran was capable of 90 degrees of flexion (normal knee flexion is 140 degrees). Extension remained normal (zero degrees) in both knees. There was no additional limitation of motion after repetitive use. There was no ankylosis. The examiner reviewed imaging studies of the knees, noting that menisci were within normal limits; anterior and posterior cruciate ligaments were intact; and articulating cartilage was also normal. According to the MRI report, there was minimal joint effusion. The Board has considered a written statement from the Veteran, dated December 2009, which describes her experiences with RSD and CRPS. The Veteran explained that it hurt her to walk, to move from a sitting to standing position and vice versa. She also reported that, due to pain and discomfort associated with her knee disabilities, she had trouble falling asleep and staying asleep. The Veteran argued that these problems made it impossible for her to work. During her hearing testimony, the Veteran described her symptoms during flare-ups. During flare-ups, she said that “I can’t move my legs because they hurt so bad . . .” According to the Veteran, flare-ups usually lasted between one and a half and two and one-half days. She further testified that she experienced flare-ups “about four or five times a month.” According to the Veteran’s mother, during flare-ups, the Veteran “could hardly stand.” The Veteran’s mother suggested that flare-ups occurred every day. With respect to this conflict in the evidence, the Board will accept as true the Veteran’s testimony – and reject the contrary testimony of her mother – because the Veteran is necessarily the person most familiar with her own medical history and because, according to the author of a subsequent VA examination report, dated January 2014, the Veteran’s mother encouraged the Veteran to exaggerate the severity of her symptoms: “Please note: at one point the veteran’s mother was noted to be standing just outside the partially open exam room door, telling the veteran, ‘Just say it hurts too much and you can’t’ [perform scheduled range of motion testing].” Analysis There is no competent medical or lay evidence that either of the Veteran’s knees met the criteria for a higher 30 percent rating for severe instability at any point during the relevant appeal period. According to the June 2009 VA examiner, the ligaments and articulating cartilage surrounding both knees were all within normal limits. The Veteran’s description of her knee instability was somewhat more serious than the examiner’s, but even she suggested that incidents of “locking” occurred between one and three times each month in the right knee and weekly in the left knee. It would not be accurate to describe these symptoms as “severe” instability for the purpose of 38 C.F.R. § 4.71a, DC 5257. As noted, flexion in both knees was 90 degrees – less than normal but not sufficiently limited to qualify for a 10 percent disability rating for limited flexion of the leg under DC 5260. 38 C.F.R. § 4.59 provides that the actual painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The Board’s December 2014 decision, later vacated by the Court, rejected the possibility of assigning a 10 percent rating for the knees based on § 4.59 in the absence of evidence of arthritis. This interpretation is consistent with a previous precedent opinion of VA’s general counsel. See VAOPGCPREC 9-98 (August 14, 1998). But the Court has since ruled that 38 C.F.R. § 4.59 is not limited to arthritis. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) More recently, the Court held that assigning a rating for instability is consistent with separate ratings for dislocated semilunar cartilage. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Court in Lyles made clear that the Veteran’s previously assigned ratings for knee instability do not reflect her pain symptoms. “Because DC 5257 compensates veterans only for knee impairment resulting in recurrent subluxation and lateral instability, the Board’s finding that Mr. Lyles’s 30% evaluation under DC 5257 also compensated him for pain and swelling must be reversed.” Id. at 117. The Veteran’s statements include descriptions of pain in both knees, which are consistent with the medical evidence provided by the January 2009 VA examiner and the information in post-service VA treatment notes. Accordingly, pursuant to 38 C.F.R. § 4.59, Burton, and Lyles, the Veteran is eligible for a separate 10 percent rating for her pain with limitation of motion in each knee, effective November 1, 2009. However, rather when considering the Veteran’s complaints of increased limitation of function during periods of flare up, the Board will assign a higher 30 percent disability for each knee given the frequency and severity of the flare up. In this regard, as a remedy for the previously mentioned inadequacies in the January 2009 VA examination report, the Board will assign a higher rating corresponding to the Veteran’s descriptions of flare-ups during the relevant appeal period. Consistent with her testimony, in which she said that flare-ups usually lasted between one and a half days and two and one-half days, the Board will assume that each of the Veteran’s flare-ups lasted two days. To grant her the benefit of the doubt, Board will further assume that the Veteran had five, rather than four, flare-ups each month – i.e., for each month during the appeal period, she experienced extremely severe symptoms of knee pain for ten days. The relevant appeal period (November 1, 2009 to July 30, 2012) consists of one thousand and two days or 32 months and 29 days. Consistent with the Veteran’s statement that during each month of the appeal period she experienced ten days of knee pain so extreme she felt she could not move her legs, the Board will assume she experienced flare-ups for 334 days. The Board will therefore assign an increased 30 percent rating for limited flexion to account for the Veteran’s increased limitation of motion during her frequent flare-ups. The inadequacies in the examination, as noted, concerned the extent of functional loss, including range of motion loss during flare-ups, implicating 38 C.F.R. §§ 4.40, 4.45 and 4.59 and the DeLuca v. Brown line of cases. DeLuca does not apply to the analysis for rating disabilities beyond the highest schedular evaluation based on limited motion when a higher evaluation requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The 30 percent that the Board will assign is the highest schedular rating available for limited flexion of the knee based on limited motion. Although a rating of 50 percent for limited extension of the leg is authorized by DC 5261, the Board finds that a rating based on flexion would be more consistent with the circumstances of this case because there are some examination findings suggesting limited flexion, but there is no evidence from any source that extension has been abnormal. It therefore follows that – notwithstanding the Veteran’s statement that, due to pain during flare-ups, she felt she could not move her legs – a 30 percent rating is the highest rating the Board can assign under these circumstances. To assign a higher rating based on ankylosis of the knees for the Veteran’s pain during flare-ups would be inconsistent with Johnston. For these reasons, the Board will assign a 30 percent rating for limited flexion during flare-ups. As noted, the Board may rate an unlisted disorder under the rating criteria for a closely related disease or injury in which the functions affected, the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. A 30 percent rating is warranted for a mental disorder with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as chronic sleep impairment. A 50 percent rating is warranted for a mental disorder which causes occupational and social impairment with reduced reliability and productivity. A 70 percent rating requires occupational and social impairment with deficiencies in most areas. A 100 percent rating is authorized when there is total occupational and social impairment. 38 C.F.R. § 4.130. Since at least August 2005, the Veteran’s VA nursing notes have indicated that she loses sleep due to pain in her knees. There are notes describing similar pain during the relevant appeal period. In November 2009, an assessment of the Veteran by a physical therapist reported that the Veteran took Tylenol at night to help her sleep. Similar nursing progress notes, dated April 2010, May 2010, and December 2010, suggest that pain in the legs affected her sleep. These notes are consistent with the Veteran’s December 2009 written statement, in which she described the pain in her knees and indicated that this pain caused her difficulty going to sleep and staying asleep. A March 2013 VA central nervous system diseases examination report noted the presence of reflex sympathetic dystrophy. This was one of the diagnoses for the service-connected knee disability prior to the AOJ rating decision reclassifying the condition as CRPS. Although the March 2013 report is somewhat outside the relevant appeal period, it is significant that the examiner indicated “yes” in response to the question “Does the Veteran have sleep disturbances?” According to the examiner, the Veteran had insomnia. It is also significant that the AOJ assigned a 40 percent rating to the Veteran’s CRPS for the period since July 30, 2012 using 38 C.F.R. § 4.71a, DC 5025. Under DC 5025, the Veteran is compensated for several symptoms, including sleep disturbance. It is clear from the Veteran’s testimony, statements, and the VA treatment records that she began to experience sleep disturbance associated with her knee pain prior to July 30, 2012. And the ratings assigned to her knees for instability, painful motion, and limited flexion do not contemplate sleep disturbance. Pursuant to 38 C.F.R. §§ 4.20 and 4.130, it is appropriate to assign a separate 30 percent rating, by analogy, for sleep disturbance associated with bilateral knee pain between November 1, 2009 and July 30, 2012. TDIU VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran's earned annual income is below the poverty threshold and in other limited circumstances. 38 C.F.R. § 4.16(a). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. Id. In March 2018, the AOJ issued a rating decision granting TDIU with an effective date of April 10, 2015. In granting a TDIU award, the AOJ relied on VA examination reports, received in November 2015 and February 2017 indicating that the Veteran was unable to work due to the effects of her service-connected epilepsy seizure disorder, complex regional pain syndrome, and migraine headaches. The AOJ explained that the reason April 10, 2015 was chosen as the effective date for the award of TDIU is because that was the date when the Veteran’s combined ratings first met the schedular rating criteria of 38 C.F.R. § 4.16(a) – i.e., one disability rated at least 60 percent or multiple disabilities with at least one rated at 40 percent and a combined rating of at least 70 percent. As a result of the Board’s decision to grant separate additional ratings for sleep impairment, somewhat reduced range of motion with pain under 38 C.F.R. § 4.59, and for reduced flexion during flare-ups under 38 C.F.R. § 4.71a, DC 5260, the Veteran now meets the schedular criteria for the entire relevant appeal period. It is true that, even after assigning these ratings, the Veteran still does not have a single disability rated as 40 percent disabling prior to December 8, 2010 – on that date the AOJ increased the rating assigned to her epilepsy from 20 percent to 40 percent. Nevertheless, the separate ratings for bilateral knee instability under DC 5257, bilateral knee pain under 38 C.F.R. § 4.59, and sleep disturbance under 38 C.F.R. §§ 4.20 and 4.130 – because they relate to a common etiology or single accident and affect a single body system – may be combined for the purpose of meeting the requirement of one 40 percent disability for the period prior to December 8, 2010. The January 2009 VA examiner wrote that the Veteran had “been unable to work for the past four years due to chronic pain in the knees, feet, [and] lower extremities.” The examiner indicated that the Veteran had difficulty concentrating due to her knee pain. According to a June 2010 VA examination report for the Veteran’s epilepsy, that service-connected disorder caused tardiness, absenteeism, memory loss and decreased concentration. The examiner wrote that the Veteran was “always escorted. She is not able to drive related to the seizures.” In February 2012, the AOJ received a report on the Veteran’s ability to work from a consultant who was formerly employed by the Social Security Administration (SSA). This report described the Veteran’s work history, including several brief periods of employment in telephone marketing. According to the consultant, these periods of employment ended due to pain and because of the Veteran’s service-connected seizures. The Veteran attempted to pursue new career qualifications by taking college courses, but due to her service-connected disabilities she was frequently absent from class. The vocational consultant wrote that, “it is my opinion within a high degree of certainty, [the Veteran] has been unable to maintain substantially gainful employment as a result of her epilepsy and CRPS since November 2005.” The Board has reviewed information from the SSA indicating the amount of the Veteran’s earned income between 1988 and 2014. According to this information, the last year the Veteran’s earned income exceeded the poverty threshold for one person was 1998. During the relevant appeal period, she reported no earned income in 2009 and 2010, earned income of $5,002 in 2011, and earned income of only $57 in 2012. The Board has received the Veteran’s Vocational Rehabilitation file. Most of the documents in the file describe the Veteran’s efforts, with the assistance of VA vocational counselors, to obtain new educational qualifications and new work opportunities before the beginning of the appeal period. Nevertheless, it is significant that these records indicate impairment of memory and concentration associated with service-connected seizures. Moreover, according to a counseling record dated July 2007, the Veteran experienced a deterioration in her medical condition before the beginning of the appeal period, which caused a transition “from the veteran participating in a program of training with the anticipation of her acquiring employment to a service of evaluating her for independent living needs.” As noted, the Director denied the Veteran’s request for an extraschedular TDIU between November 1, 2009 and July 30, 2012. That decision emphasizes the existence of disabilities that are not service-connected or were not service-connected at the relevant time (chronic hand, neck and low back pain, depression, hypertension and sleep paralysis). The Director also noted that the Veteran’s knees remained capable of significant range of motion and that painful motion was mild in nature. The Director’s decision, however, does not address the Veteran’s statements concerning the effects of her epilepsy and knee pain on her ability to sleep, to remember, and to concentrate. It does not account for her persistent inability, even after receiving years of counseling and educational assistance, to obtain earned income exceeding the poverty threshold for one person. And it fails to address the report of the vocational consultant received by the AOJ in February 2012 or a similar, more recent report, from another vocational consultant submitted by the Veteran’s attorney in February 2017. The more recent report, reviews the Veteran’s employment and earning history and concludes that she has been unemployable “as far back as 1999.” The Board finds that the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities prevented her from securing and following substantially gainful employment between November 1, 2009 and July 30, 2012. Resolving reasonable doubt in her favor, the Board will grant a TDIU rating, effective November 1, 2009. Claims for Increased Ratings for the Knees on an Extraschedular Basis VA has granted a total disability rating based on individual unemployability, with an effective date of November 1, 2009. A 100 percent rating means that a veteran is totally disabled. See Holland v. Brown, 6 Vet. App. 443, 446 (1994). The assignment of a total disability rating avoids the need to decide whether the Veteran is eligible to receive increased ratings for her service-connected knee disabilities on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). That regulation “performs a gap-filling function. It accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented.” Johnson, 762 F.3d at 1366. Having determined that the Veteran’s overall disability picture does establish total unemployability for the entire relevant appeal period (November 1, 2009 to the present), it is now unnecessary to consider the Veteran’s arguments in favor of higher extraschedular ratings for her service-connected bilateral knee disabilities. Cf. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). In Aronson v. Brown, 7 Vet. App. 153, 155 (1994), the Court applied the jurisdictional restrictions of the case or controversy requirement of Article III of the Constitution of the United States to claims for Veteran’s benefits. Relying on Aronson, the Court in Herlehy determined that the appropriate disposition to a moot claim is to dismiss the appeal. Herlehy, 15 Vet. App. at 35. For similar reasons, the Board now finds that the claims for increased ratings for the Veteran’s service-connected left and right knee disabilities on an extraschedular basis are moot and must be dismissed. Further, in assigning higher disabilities based on limitation of flexion of the knees during flare-ups and granting a separate disability evaluation for the Veteran’s sleep disturbance due to her knee pain and continuing the evaluation for instability of the knees, the Veteran’s severity of the Veteran’s symptoms associated with her service-connected disabilities have been accounting for in the various disability evaluations assigned during this period.   REASONS FOR REMAND Entitlement to a disability rating in excess of 40 percent for complex regional pain syndrome is remanded. As noted in the discussion of the Veteran’s increased rating claims for her knees, the AOJ issued a rating decision in October 2013 replacing the separate ratings for knee instability under 38 C.F.R. § 4.71a, DC 5257 with a single rating for complex regional pain syndrome (CRPS) and a single 40 percent rating, rated by analogy to fibromyalgia, under DC 5025, effective July 30, 2012. A rating of 40 percent is the maximum schedular rating authorized by DC 5025, which does not expressly consider the results of range of motion tests in its rating criteria. If the AOJ had not used the single 40 percent rating for CRPS to replace the Veteran’s separate rating for knee instability, further VA examinations of the Veteran’s knees and lower legs might seem superfluous. But it is clear from cases such as Lyles that additional ratings under other potentially applicable diagnostic codes could apply to the period after July 30, 2012. In this context, it was proper, and perhaps necessary for the AOJ to arrange additional VA knee and lower leg examinations in January 2014 and, most recently, in February 2017. Unfortunately, it is necessary to remand the remaining increased rating claim because the February 2017 examiner’s report failed to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held that adequate range of motion test results include evaluating range of motion “for pain on both active and passive motion and in weight bearing and nonweight-bearing.” Id. at 170. The February 2017 examination report includes one initial set of range of motion test results for each knee and one set of results after repetitive use. And the examiner apparently attempted to comply with 38 C.F.R. § 4.59 by indicating that the Veteran experienced pain with weight-bearing during testing of both knees. But the examiner did not provide separate sets of range of motion tests results using each of the testing methods described in the regulation. Several parts of the Court’s opinion in Correia suggest that it is not enough merely to indicate whether or not pain was present during a test. In the part of the decision which considered whether § 4.59 was ambiguous, the Court explained the role of the regulation in the context of other regulations which apply generally to disabilities of the musculoskeletal system. “In that context, then, we read the final sentence of § 4.59 as explaining the kinds of test results that ‘should’ be obtained to permit an adjudicator to assess the effect of painful motion – range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances.” Correia, 28 Vet. App. at 165. It is difficult to see how test results which merely indicate the presence or absence of pain would permit an adjudicator to assess the effect of pain on range of motion. To do so effectively, it would be useful for the adjudicator to have the full results of each range of motion test – i.e., the range of motion, in degrees, of the relevant joint using each of the testing methods identified in the regulation. The Correia opinion continues with analysis of the interpretation of § 4.59. This part of the Court's analysis indicates that the regulation should be read together with 38 C.F.R. §§ 4.40 and 4.45. The Court explained that, “[§ 4.40] states that it ‘is essential’ that an examination on which a disability rating is based ‘adequately portray the anatomical damage and the functional loss’ that occurs as a result of those elements. Section 4.45 explains that ‘the factors of [joint] disability reside in reductions of their normal excursion of movements in different planes.” Correia, 28 Vet. App. at 169 (internal short form citations and explanatory parenthetical omitted). “Neither of those regulations, however, explains how that information should be obtained, except that § 4.40 refers to ‘an examination,’ but the Secretary has answered this question in § 4.59.” Id. If § 4.59 was intended to accomplish the purposes of § 4.45 – one of which is to assess “reductions in [the] normal excursion of movements [of the joint] in different planes” – the most reasonable reading of § 4.59 requires the examiner to provide detailed range of motion test results, not merely an indication of whether or not pain was present. The final sentence the Court's regulatory interpretation analysis supports this conclusion: “Consequently, we are left with the inescapable conclusion that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of §4.59.” Id. at 169-70. For these reasons, the Board must remand the remaining increased rating claim for a new examination. During the post-remand examination, the examiner should attempt to elicit new information from the Veteran concerning the history and extent of her flare-ups. The February 2017 report indicated that the examination took place during a flare-up, but the range of motion test results suggest that, during this flare-up, the Veteran remained capable of 0 to 90 degrees flexion and 90 to 0 degrees extension in both knees. This finding suggests that symptoms during flare-ups are milder than the Veteran suggested during her December 2011 hearing testimony, in which she testified that, during flare-ups, she could not move. Whether or not the post-remand examination takes place during a flare-up, the examiner should elicit information from the Veteran, attempt to describe the extent of functional loss during recent flare-ups, and indicate whether or not the intensity of functional loss during flare-ups has changed over time. The matter is REMANDED for the following action: 1. Obtain and Associate with the claims file copies of all records of the Veteran’s VA treatment since April 2018. 2. Schedule a VA knee examination to ascertain the current severity of the Veteran's service-connected knee disabilities. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with bilateral knee disabilities should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's left and right knees and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing, and the range of motion in the opposite, undamaged joint. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Whether or not the post-remand examination takes place during a flare-up, the examiner should ask the Veteran about whether the extent of functional impairment during flare-ups, and the frequency and duration of flare-ups, has changed since July 20, 2012. 3. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Nye, Associate Counsel