Citation Nr: 18151689 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-24 255 DATE: November 20, 2018 ORDER Entitlement to a disability rating in excess of 10 percent prior to October 6, 2010, in excess of 30 percent from December 1, 2011 to September 15, 2015, and in excess of 60 percent for degenerative arthritis, status post total knee replacement of the left knee from September 15, 2015 is denied. Entitlement to a disability rating in excess of 40 percent from November 22, 2011, to September 15, 2015, for a lumbosacral strain is denied. Entitlement to a disability rating of 70 percent, but no higher, for bipolar disorder is granted for the entirety of the appeal period, subject to the regulations governing payment of monetary awards. REMANDED Entitlement to a disability rating in excess of 10 percent prior to August 3, 2010, and to a disability rating in excess of 30 percent from October 1, 2011, for degenerative arthritis of the right knee and status post total knee replacement is remanded. Entitlement to a disability rating in excess of 20 percent prior to November 22, 2011, and in excess of 10 percent from September 15, 2015, for a lumbosacral strain is remanded. Entitlement to additional compensation for a left knee on the basis of a torn meniscus or instability is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT 1. Prior to October 6, 2010, the Veteran’s left knee condition was manifested by painful motion that did not limit his flexion to 60 degrees or less. 2. For the period from December 1, 2011, to September 15, 2015, the evidence of record does not show that Veteran’s left knee condition was manifested by residuals of a total knee replacement (prosthesis) with severe painful motion or weakness. 3. For the period from September 15, 2015, the Veteran is in receipt of the highest schedular rating for any disability of the left knee or leg in the absence of an amputation, and the Veteran’s left leg has not been amputated. 4. For the period from November 22, 2011 to September 15, 2015, the Veteran is in receipt of the highest schedular criteria for a lumbosacral strain in the absence of evidence that his spine is ankylosed or a diagnosis of Intervertebral Disc Syndrome (IVDS), and the evidence of record establishes that the Veteran’s spine was not ankylosed and that he was not suffering from IVDS during this period. 5. Throughout the appeal period, the preponderance of the evidence shows that the Veteran’s bipolar disorder manifested with occupational and social impairment with deficiencies in most areas; total occupational and social impairment was not shown. CONCLUSION OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative arthritis of the left knee were not met prior to October 6, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 30 percent for degenerative arthritis, status post total knee replacement of the left knee were not met from December 1, 2011 to September 15, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Code 5055. 3. The criteria for a rating in excess of 60 percent for degenerative arthritis, status post total knee replacement of the left knee have not been met from September 15, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Code 5055. 4. The criteria for a rating in excess of 40 percent for a lumbosacral strain were not met for the period from November 22, 2011 to September 15, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5237. 5. Throughout the appeal period, the criteria for entitlement to a disability rating in excess of 70 percent, but no higher, for bipolar disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.126, 4.130, Diagnostic Code 9432. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1982 to December 1982 and October 1988 to June 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in January 2010, December 2010, September 2012, and May 2016. Each of those decisions represents either a denial or the partial grant of benefits to the claims discussed herein. However, the May 2016 decision prompted the Veteran and his representative to file a new Notice of Disagreement (NOD), which in turn prompted a response from VA as if the Veteran were beginning a new appeal from that decision. The May 2016 decision was promulgated along with a Statement of the Case (SOC) to effectuate the partial grant and partial denial of the benefits sought by the Veteran on appeal. The Veteran promptly filed a substantive appeal form to that SOC resulting in this appeal to the Board. Consequently, the NOD the Veteran filed in 2016 is properly understood not as creating a new appeal but as supplemental to the Veteran’s substantive appeal. The Veteran is in receipt of a temporary total evaluation for convalescence from August 3, 2010 to October 1, 2011 and from October 6, 2010 to December 1, 2011, due to surgical procedures on his knees. As this is the highest available benefit with respect to these conditions, these periods are not discussed further with respect to his knees. INCREASED RATING Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). “Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must consider the evidence of disability during the period one year prior to the application. Hazan v. Gober, 10 Vet. App. 511 (1997). Where there is a question as to which of two ratings shall be applied, the higher rating 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. VA examinations of joints are required to record a veteran’s relevant joint’s active and passive ranges of motion, and to test a veteran’s relevant joint for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, to conduct similar tests on a veteran’s opposite, undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). VA regulations and governing case law anticipate that examiners will offer opinions regarding additional functional loss due to flare ups, including estimates of additional loss of range of motion in degrees where appropriate, and that the Board shall ensure that examiners have evaluated all procurable and assembled information before determining that such estimates cannot be made. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of a matter. VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a disability rating in excess of 10 percent prior to October 6, 2010 for degenerative arthritis of the left knee. Prior to the Veteran’s total knee replacement, his degenerative arthritis of the left knee was rated based on the limitation of flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under this diagnostic code, a non-compensable (0 percent) rating is assigned where a knee is capable of at least 60 degrees of flexion; a 10 percent rating is assigned where a knee is capable of flexion of at least 45 degrees, but less than 60 degrees; a 20 percent rating is assigned where a knee is capable of flexion of at least 30 degrees, but less than 45 degrees; and a 30 percent rating is assigned where a knee is capable of 15 degrees or less of flexion. Id. The Veteran filed his claim for an increase in his disability rating for his left knee disability in July 2009. In his claim, the Veteran stated he had difficulty ambulating due to his left knee condition in combination with his right knee and back conditions and that all three conditions had increased in severity. A July 2009 mental health VA treatment record indicated that the Veteran reported a walking tolerance of 25-30 yards, an ability to sit for 8 hours at a time if he could shift around, and an inability stand for more than 10 minutes due to lower back pain. An ambulatory care note from the same day documents that the Veteran complained of increased pain in his left knee, and more pain with weight bearing on the left side The Veteran underwent a VA examination in September 2009. He reported constant pain in his left knee rated 8 out of 10. He treated it with medication and by limiting his activities. The Veteran reported symptoms of giving way, instability, pain, stiffness, weakness, decreased speed of motion, locking episodes occurring several times a year but less than monthly, and tenderness. The examiner indicated that the condition of the Veteran’s left knee affected the motion of the joint, but that there were no flare-ups of joint disease reported. The Veteran limped on his right and walked with a cane on the right. On examination, there was no evidence of pain with active motion on the left. His left knee demonstrated flexion from 0 to 100 degrees and extension to 0 degrees. There was no objective evidence of pain following repetitive motion and no additional limitations after three repetitions of range of motion. There was no ankylosis. Recent x-rays from March 2009 documented minimal degenerative changes consisting of mild narrowing of the medial compartment and minimal narrowing of the lateral compartment, minimal osteophytic spurring, and minimal narrowing and osteophytic spurring of the patellofemoral joint. The Veteran’s bilateral knee pain rendered him unable to walk or stand for prolonged periods of time. The examiner indicated that he would only be able to stand for 15-30 minutes at a time or walk up to a quarter of a mile at a time. A December 2009 VA treatment note indicates that the Veteran underwent an arthroscopic surgery on October 4, 2009. Though these records are not available, and the Veteran was advised of their unavailability and advised that he could submit them if he wanted them considered in evaluating his knee disabilities, the Board finds that they are not relevant to an evaluation of the Veteran’s left knee. Subsequent VA treatment records from June 2010 document the presence of an ACL surgical scar on his right knee and no scar on his left knee, indicating that this surgery must have been on his right and not his left knee. In December 2009, his left knee did not demonstrate crepitus and had “good” range of motion. However, his physician noted severe knee degenerative joint disease. A June 2010 VA treatment record included an examination of the Veteran’s left knee. The skin was intact, there were no scars, effusions, or deformities, and no patellofemoral crepitation. His left knee was tender to palpation and he had a range of motion from 0-120 degrees. Special tests of the Veteran’s knee indicated a potential condition of the Veteran’s meniscus and instability. The physician reviewed a March 2009 x-ray of the Veteran’s left knee that documented mild joint degenerative changes; a May 2010 MRI that documented medial joint degenerative changes, chondromalacia patella, and a posterior horn medial meniscal tear. The physician assessed the Veteran as having osteoarthritis of the left knee, internal derangement of the posterior horn medial meniscus of his left knee, and chondromalacia patella of the left knee. At an August 2010 VA physical therapy session after his right knee replacement, the Veteran’s left knee demonstrated an active range of motion from 0-129 degrees and an identical passive range of motion. The Veteran subsequently underwent a total knee replacement of his left knee on October 6, 2010 and remained at a temporary total evaluation until December 1, 2011. Based on this evidence, the Board finds that the Veteran’s condition does not meet the criteria for a rating in excess of 10 percent prior to October 6, 2010. During this period, the Veteran’s range of motion in his left knee was never limited to 60 degrees or less, in fact his range of motion was always measured as permitting him to flex his knee at least as far as 100 degrees of flexion. Therefore, a rating in excess of 10 percent for this condition is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5260. In reaching this conclusion, the Board has considered the other factors relevant to a consideration of the appropriate rating for disabilities of the musculoskeletal system, and acknowledges that the Veteran’s VA examination did not include all the information that is required of current VA examinations. Notably the examination report did not test for pain with weight-bearing or passive range of motion. Correia, 28 Vet. App. 158. Nor does the examination provide an opinion as to the further limitation of function in terms of degrees of range of motion lost after repeated use over time. Sharp, 29 Vet. App. 26. However, other evidence in the record provides information that supplements the information missing from the examination. The Veteran’s passive range of motion in his left knee was tested in August 2010, and noted to be identical to the active range of motion measured at the same time, and both the active and passive ranges of motion documented were more than twice as large as the rating schedule requires to meet the criteria for a minimally compensable rating. Consequently, the Board finds that the preponderance of the evidence of record does not support the conclusion that the Veteran’s passive range of motion changes the overall picture of his left knee disability. Still other evidence exists that can guide the Board on the question of additional limitation of motion after repetitive use over a period of time. First, there is the fact that the VA examination report did not document any additional pain or loss of motion as a result of repetitive motion testing. Second, comparing the Veteran’s range of motion during the VA examination in September 2009 to the range of motion measured in August 2010 reveals that the Veteran’s range of motion in his left knee actually increased after an additional 11 months of use. Moreover, the examination of the Veteran’s left knee in August 2010 was conducted a few weeks after his right knee surgery, at a time when he might have been favoring his right leg while it was recovering and depending more on his left. Thus, the Board finds that the evidence does not suggest that the Veteran’s range of motion was being further limited by use over time. The September 2009 VA examination was also not completely silent on the question of pain with weight-bearing. The examination provided evidence that the Veteran’s condition at least caused pain with extended weight-bearing due to the restriction on the Veteran’s ability to walk or stand for long distances or time periods noted on the VA examination. The Board has considered whether additional compensation is warranted for this pain with weight-bearing. However, the Board finds that this amounts to pain with use of the leg, which the Veteran is compensated for by ensuring that his left knee is compensated at least the minimal level of compensation despite not meeting the criteria for a non-compensable rating for the limitation of flexion in accordance with VA regulations. 38 C.F.R. § 4.59. Finally, during this period, the Veteran reported symptoms of instability and locking episodes occurring several times a year but less than monthly at the September 2009 VA examination. A June 2010 VA treatment record also documents a meniscal tear and instability during an examination of the knee. Under appropriate circumstances, additional compensation may be appropriate for damage to cartilage and instability of the knee. Lyles v. Shulkin, 29 Vet. App. 107 (2017). However, it is not clear from the record whether these conditions are related to the Veteran’s service or his service-connected left knee injury. Consequently, further development with respect to these symptoms is ordered in the remand portion of this decision. 2. Entitlement to a disability rating in excess of 30 percent from December 1, 2011 to September 15, 2015, for degenerative arthritis of the left knee and left knee status post total knee replacement is remanded. Since the Veteran’s total left knee replacement, his disability has been rated under the diagnostic code that governs the residuals of total knee replacement prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under this code 100 percent disability rating is granted for one year. After that period passes, a knee prosthesis can be rated based on the symptoms such as limitation of motion, weakness, or pain. However, this code provides a minimum post-surgical disability rating of 30 percent; or a 60 percent disability rating with chronic residuals consisting of severe painful motion or weakness in the affected extremity. The Veteran underwent another VA examination in July 2012. He reported that his left knee hurt with full flexion and prolonged standing, but that the pain decreased when he straightened his knee. He did not report flare-ups. The Veteran’s left knee demonstrated flexion to 110 degrees and pain also began at 110 degrees. He was able to extend his left knee to 0 degrees without any hyperextension and there was no change in the Veteran’s left knee after repetitive use testing. The Veteran had functional loss and/or functional impairment due to less movement than normal on his left, normal strength, and no instability. The Veteran did not have a history of meniscal conditions. Degenerative arthritis was documented on x-rays of both knees. The Veteran’s treatment records do not document treatment for this condition prior to his receipt of another VA examination of his knees on September 15, 2015. It was on the basis of the evaluation of the pain during this examination that the Veteran’s rating was increased to 60 percent for the left knee. Based on this evidence, the Board finds that the Veteran does not meet the criteria for a rating in excess of 30 percent for his left knee condition, status post total knee replacement and prior to September 1, 2015. The Board has considered the propriety of rating the Veteran’s residuals of a total knee replacement based on range of motion, instability, or by analogy to loss of cartilage with locking episodes. However, the Veteran’s range of motion does not meet the minimum criteria based on limitation of flexion or extension. The Veteran’s flexion was not limited to 60 degrees or less, and his extension was not limited at all. 38 C.F.R. § 4.71a, Diagnostic Codes 5260-61. Similarly, the examination of the Veteran’s left knee did not find evidence of instability, locking, or a history of meniscal conditions, or similar symptoms. Consequently, the Board finds that rating by analogy to those conditions would neither be appropriate nor result in additional compensation for the Veteran. 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5258. The Board acknowledges that the VA examination during this period did not provide all the information that VA examinations are now required to provide. Notably absent again are passive range of motion testing, specific information about pain with weight-bearing, or an expression of any additional range of motion lost after repeated use over a period of time. Correia, 28 Vet. App. 158; Sharp, 29 Vet. App. 26. However, given that the Veteran’s left knee was capable of nearly twice the degree of flexion that VA regulations set for a 10 percent rating, and that his active and passive ranges of motion were identical in August 2010, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s passive range of motion differed significantly from the Veteran’s active range of motion during this period. In contrast to the 2012 VA examination, the September 15, 2015 VA examination did provide information on the Veteran’s left knee’s range of motion after repeated use over a period of time. In that examination, the VA examiner found that the Veteran’s left knee lost 3 degrees of range of motion after repeated use over a period of time (decreasing from 116 to 113 degrees of flexion on that examination). The Board finds that this is the best evidence of the effect of the Veteran using his left knee repeatedly over a period of time during the period prior to the September 15, 2015 VA examination. Based on this evidence, the Board finds that limitation of motion on passive motion or when the joint is used repeatedly over a period of time is not so significantly different from the active range of motion documented on the 2012 VA examination that it alters the overall picture or understanding of the Veteran’s disability. The Board notes that while the VA examination does not contain information specific to pain with weight-bearing, the VA examination once again indicates that the Veteran’s knee experiences increased pain after prolonged weight-bearing because he reported increased pain after prolonged standing. However, this is the type of painful use which the rating schedule intends veterans to be minimally compensated, rather than an indication that the next higher disability rating is appropriate. 38 C.F.R. § 4.59. Ordinarily, the minimal compensable rating is 10 percent. 38 C.F.R. § 4.59, 4.71a, 5003, 5260. However, where a veteran has undergone a total knee replacement, the minimum rating for residuals is set at 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. As previously noted, the Veteran is in receipt of this rating during this portion of the appeal period. Thus, the remaining question for the Board is whether there is evidence that the Veteran’s condition manifests the type of severe painful motion or weakness necessary to provide him with the next highest disability rating for residuals of a total knee replacement prior to September 15, 2015. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board finds that the evidence of record does not support such a finding. At the 2012 VA examination, the Veteran reported that his knee hurt with full flexion or prolonged standing. However, he demonstrated the ability to flex his knee to all but 30 degrees of the normal range of motion for a knee before pain set in and demonstrated normal strength. The Board finds that this evidence is not consistent with the severe painful motion and weakness necessary to meet the criteria for a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5055. There are no treatment records to indicate that the Veteran was seeking treatment for the kind of severe pain contemplated by the next highest disability rating for residuals of a total knee replacement. Consequently, the Board finds that the Veteran’s condition does not meet the criteria for a rating in excess of 30 percent prior to the September 15, 2015 VA examination. Id. 3. Entitlement to a disability rating in excess of 60 percent for degenerative arthritis, status post total knee replacement of the left knee from September 15, 2015. Ratings for knee replacement (prosthesis) are governed by 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under this code, a 60 percent rating is provided where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. A 100 percent rating is provided for 1 year following the implantation of the prosthesis. Id. From September 15, 2015, the Veteran is in receipt of a 60 percent rating for residuals of his left knee. The rating schedule does not provide for a rating in excess of 60 percent for a disability of the knee or leg on a permanent basis absent an amputation (Diagnostic Codes 5160-61). There is no suggestion in the record that the Veteran has had his left leg amputated. Consequently, a rating in excess of 60 percent from September 15, 2015 is denied. 4. Entitlement to a disability rating in excess of 40 percent from November 22, 2011 to September 15, 2015, for a lumbosacral strain. Disabilities of the spine are rated under the General Rating Formula for Diseases or Injuries to the spine based on the limitation of motion; effects on posture or gait; or other manifestations such as the abnormal curvature of the spine itself. Associated objective neurologic abnormalities are rated separately. Normal range of motion for the thoracolumbar spine consists of: forward flexion of zero to 90 degrees, extension of zero to 30 degrees, left and right lateral flexion of zero to 30 degrees, left and right lateral rotation of zero to 30 degrees, and a combined total range of motion of 240 degrees. The combined range of motion is determined by adding together the ranges of motion for forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine (2016), Diagnostic Codes 5235-5243. There is an alternative formula for rating IVDS. 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, this is not discussed further as the medical evidence of record contains no evidence or suggestion that the Veteran has been diagnosed with IVDS during the appeal period generally or this portion of it in particular. The Veteran’s lumbar spine disability is currently rated 40 percent disabling during the period from November 22, 2011 to September 15, 2015. VA assigns a 40 percent disability rating where a claimant demonstrates forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (i.e. where the spine is fixed in a neutral or upright position). Id. VA assigns a 50 percent disability rating where a claimant demonstrates unfavorable ankylosis of the entire thoracolumbar spine (e.g. where the thoracolumbar spine is fixed in a position either bent forward or backward). Id. Finally, VA assigns a 100 percent disability rating where a claimant demonstrates unfavorable ankylosis of the entire spine. Id. As these criteria make clear, a claimant cannot establish entitlement to a lower back disability rating in excess of 40 percent in the absence of a showing of ankylosis. The Veteran underwent VA examinations of his back in September 2009, July 2012, and September 2015. These examinations all document that the Veteran has at least some range of motion in his back and that he does not have ankylosis. No other evidence of record indicates that the Veteran has ankylosis, nor does the Veteran describe his back condition as being ankylosed at any point in the record. The Board has also considered the special considerations applicable to rating disabilities under Correia and DeLuca as well as the regulations that those cases interpret. However, while these considerations can help in understanding a Veteran’s overall disability picture, the appropriate rating assigned is still that set forth in the schedule. Thompson, 815 F.3d 781, 785. That rule applies with even more force in a case such as this where additional loss of range of motion would not result in additional compensation absent a showing of ankylosis. Entitlement to a rating in excess of 40 percent for a lumbosacral strain from November 22, 2011 to September 15, 2015 must be denied. INCREASED RATING BIPOLAR DISORDER VA regulations provide that all mental health conditions are rated under the same General Rating for Mental Disorders. 38 C.F.R. § 4.130. Mental disorders are evaluated as 30 percent disabling when they cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. Mental disorders are evaluated as 50 percent disabling when they cause occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned where a mental disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the various levels of rating criteria in § 4.130 are non-exhaustive, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the symptoms listed at the various levels of rating criteria in § 4.130 are deemed by VA to be representative of the corresponding levels of occupational and social deficiency. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Thus, the fact that a claimant has a symptom listed in one evaluation level without an analogue at lower evaluation levels indicates that the presence of that symptom alone may be cause for finding that the claimant’s condition meets that particular level of disability. Id. 3. Entitlement to a rating in excess of 30 percent for bipolar disorder prior to November 22, 2011 Prior to November 22, 2011, the Veteran’s bipolar disorder is rated 30 percent disabling. During this portion of the appeal period, VA treatment notes document symptoms of depression and a down mood associated with the Veteran’s knee pain. It was during this portion of the appeal period that the Veteran had his knee surgeries. During this time, he was out of work since approximately the time of his knee surgeries. VA treatment records noted symptoms of depression, psychomotor retardation, a lack of compliance with medication, feeling down, poor sleep, having a difficult time getting things done, and feeling overwhelmed and helpless. VA treatment notes also noted that the Veteran had a tendency to hide away in his home, was becoming depressed and angry, irritable, and anxious. He reported decreased energy, decreased concentration, decreased appetite, decreased sleep, anhedonia, bizarre dreams, and forgetfulness. At least one VA treatment provider noted an impaired remote memory. The Veteran underwent a VA examination in August 2010. The examiner’s report noted symptoms of serious depression over the preceding year, poor sleep, low motivation, helplessness, low libido, low energy, and mild passive suicidal ideations. Despite these symptoms, the Veteran reported success in his schooling, maintaining a 3.9 GPA in an aviation technical school, volunteering to coach his daughter’s basketball team, successfully sharing custody of his daughter with his ex-wife, reading novels for pleasure. The Veteran did not report that his mental health conditions had affected his work, but reported that he had left his last job due to the physical demands of his work and the pain in his knees. VA treatment records after the August 2010 VA examination generally accord with the treatment records that came before. The Veteran was noted to have a strong work history, but struggled to find and to maintain employment, struggled with pain in his knees, and struggled with symptoms such as depression and worry. Based on this evidence, the Board finds that the Veteran’s psychiatric condition during this period meets the criteria for a 70 percent disability rating. The Board makes this finding because although the evidence of record, particularly the August 2010 VA examination includes evidence of suicidal ideation. Suicidal ideation is one of the criteria corresponding to a 70 percent rating. See 38 C.F.R. § 4.130. Consequently, a 70 percent rating is appropriate. Bankhead, 29 Vet. App. 10 (2017). The Board finds that the evidence of record during this period does not warrant a 100 percent rating. The evidence of record simply does not support the conclusion that the Veteran was totally socially and occupationally impaired. There is no suggestion that he could not take care of himself due to mental illness and he performed his duties as a father and volunteered as a basketball coach. Consequently, a finding of total occupational and social impairment is not warranted during this period, and a 100 percent rating for bipolar disorder is denied. 38 C.F.R. § 4.130. 4. Entitlement to a disability rating in excess of 50 percent for bipolar disorder from November 22, 2011. The Veteran’s bipolar disorder is rated 50 percent disabling from November 22, 2011. The Veteran underwent a VA examination in July 2012. The Veteran was living alone in a townhouse and had joint custody of his daughter. He continued to coach basketball for his daughter’s team, and read novels for pleasure. He had found work at some point between the last VA examination and this one, but had not worked since March 2012, citing his physical condition as the reason that he stopped working. He had been attending monthly sessions with a social worker. He was not compliant with his medication, and reported depression for a couple of years. The examiner noted symptoms of depressed mood, chronic sleep impairment, mild memory loss for names, directions, or recent events, and a flattened affect. The examiner also noted that the Veteran felt hopeless about finding work, was suffering financial stress, and depression with crying spells, and increased appetite. The Veteran reportedly could not remember that he had previously participated in a VA examination in 2010. Later VA treatment notes from 2013 documented that the Veteran had obtained a part time job, was planning to move to Idaho, and not been compliant with his medication. The Veteran reported issues sleeping, problems with anger, and denied current suicidal and homicidal ideation. The examiner noted not sign of psychosis, that the Veteran was friendly and cooperative, maintained good eye contact, and appeared with depressed mood and restricted affect. VA treatment records from later in the appeal period documented that the Veteran’s chronic pain continued to impact his mood, functioning, and sleep. The Veteran reported struggling with motivation, energy, self-esteem, and concentration. The examiner noted a dysthymic mood. The Veteran attended another VA examination in September 2015. The examiner assessed him as having occupational and social impairment with reduced reliability and productivity due to his bipolar disorder. The Veteran reported having a great relationship with his daughter, ex-wife, and ex-wife’s new husband. He reported that he felt like he had trouble fitting in. He reported doing poorly in relationships, and having lots of jobs that did not last due to a lack of focus. He reported that he could not return to his last steady job because of the level of pain he experienced. The examiner documented that the Veteran reported primarily manic symptoms such as spending sprees, perceiving colors vibrantly, feeling elated, and like nothing can go wrong. The Veteran described his emotional downs as associated with depression rather than anxiety. The Veteran reported flashbacks to his service. Despite the fact that the Veteran had previously denied suicidal ideation at earlier treatment visits, the Veteran reported that he had had suicidal ideation and even a plan in 2013, but had stopped himself and taken affirmative actions to make sure that he could not follow through. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss (for names, directions or recent events), difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The Veteran provided the report of a private mental health examination that he underwent in November 2015. This examiner assessed the Veteran’s bipolar disorder as causing occupational and social impairment with deficiencies in most areas, and that the Veteran’s mental health condition alone rendered him incapable of obtaining or maintaining substantially gainful employment due to the amount of time that he would be expected to miss work due to the symptoms of his mental health condition and reactions to normal pressures and constructive criticisms that come with a job. The Veteran was living with his brother, tended to keep his struggles to himself, and was socially isolated and withdrawn. The Veteran gave a work history that included work as recently as 2014 that he had to discontinue due to the physical demands of the job. The Veteran was medication compliant, but did not attend regular individual or group therapy because of transportation problems. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, impairment of short and long term memory, memory loss for his own name or names of close relatives, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The Veteran reported that he could no longer enjoy simple activities due to his psychiatric symptoms. The examiner reported that the Veteran appeared to be paranoid when speaking to the examiner. The Veteran was able to do the majority of his daily living tasks, shopped for food, prepared meals, helped maintain the household, but sometimes would forget to make necessary payments. Based on this evidence, the Board finds that the Veteran’s psychiatric condition during this period meets the criteria for a 70 percent disability rating. The Board makes this finding because of the evidence of suicidal ideation during this period, and because of the evidence of the effect that the Veteran’s bipolar disorder had on his ability to work during this period, especially the September 2015 VA examiner and November 2015 clinician that both indicated that the Veteran’s condition would make it difficult for him to adapt to stressful circumstances such as a work-like setting. Consequently, the Board finds that the criteria for a 70 percent rating are met. 38 C.F.R. § 4.130. However, the Board finds that the evidence preponderates against a finding that the Veteran’s condition is totally occupationally and socially disabling. First, the evidence indicates that the Veteran was able to perform some work during the appeal period, and ended up having to leave that employment for physical health reasons. Second, despite some evidence that the Veteran tends toward isolation, it seems clear from the evidence that the Veteran maintains important relationships with his family, including relationships with an ex-wife and her new husband that he describes quite positively. Third, though the Veteran has a history of suicidal ideation, and even at one point had a plan and the means to carry it out, the Veteran reported taking affirmative steps to make sure that he did not follow through on the plan. The Board finds that this is evidence that preponderates against a finding that the Veteran is consistently a threat to himself or others. Finally, the evidence of record does not more generally support a finding of the symptoms listed in the criteria for a 100 percent rating. 38 C.F.R. § 4.130. Consequently, the Board finds that a 100 percent rating for bipolar disorder is not supported by the evidence during this portion of the appeal period. REASONS FOR REMAND 1. (1) Entitlement to a disability rating in excess of 10 percent prior to August 3, 2010, and to a disability rating in excess of 30 percent from October 1, 2011, for degenerative arthritis of the right knee and status post total knee replacement is remanded; (2) Entitlement to a disability rating in excess of 20 percent prior to November 22, 2011, and in excess of 10 percent from September 15, 2015, for a lumbosacral strain is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s bilateral knee and lower back conditions, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements. Because there is the possibility that the medical history, the passive range of motion testing, and other information provided by the examination may result in a benefit to the Veteran, the portions of the appeal period where the Veteran is not receiving the maximum benefit in the absence of a showing of ankylosis are remanded for an appropriate examination and readjudication based on the resulting report. 2. Entitlement to additional compensation for a left knee condition based on a meniscal tear with locking episodes or instability. As previously discussed, during the period prior to the Veteran’s total knee replacement of his left knee, a June 2010 VA treatment record documented evidence of instability and discussed a May 2010 MRI that found a meniscal tear in the Veteran’s left knee. The September 2009 VA examination also documented symptoms of instability and locking episodes. Under appropriate circumstances, additional compensation may be appropriate for damage to cartilage and instability of the knee. Lyles, 29 Vet. App. 107. However, it is not clear from the record whether these conditions are related to the Veteran’s service or his service-connected left knee injury. Consequently, an addendum opinion should be provided discussing whether these symptoms are manifestations of or otherwise related to the Veteran’s service-connected condition. 3. Entitlement to TDIU is remanded. The May 2016 VA examination and accompanying codesheet indicate both that TDIU was granted and denied in this cause depending on which portion of which document a reader references. Based on the combined evaluation for compensation listed on the codesheet, it appears that the Veteran was not granted TDIU at any point during the appeal period, but instead reached a combined disability rating of 100 percent at various stages of his appeal, and not provided with an award of TDIU as the adjudicator below believed that it was moot. However, if TDIU was actually granted at some point during the appeal period, the Veteran should be appropriately notified of this, including an indication of the effective date of the award so that he can make an appropriate appeal if he so chooses. Moreover, the determination of whether the Veteran is entitled to TDIU for any stages where he has not received an award of TDIU may be affected by information obtained from the knee and back examinations that are required as part of this remand. His entitlement to TDIU should be readjudicated in light of the examination results. Finally, an award of a combined rating of 100 percent does not necessarily render moot the question of entitlement to TDIU under the circumstances presented by this case. When TDIU is readjudicated, consideration should be given to whether any of the Veteran’s individual disabilities alone are sufficient to render him unemployable. Bradley v. Peake, 22 Vet. App. 280 (2008). The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination of the current severity of his right knee and lower back conditions. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his bilateral knee and lower back conditions alone and discuss the effect of the Veteran’s bilateral knee and lower back conditions on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also provide an addendum opinion regarding whether it is at least as likely as not that the meniscal tear in the Veteran’s left knee documented in the May 2010 VA MRI report or the instability and locking episodes documented in the June 2010 VA treatment records and September 2009 VA examination are manifestations of or otherwise caused by or related to the Veteran’s service-connected left knee disability. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to an increased rating for right knee and lower back conditions during the stages remaining on appeal and entitlement to TDIU. With regard to TDIU, a determination should be made as to whether of any of the Veteran’s individual service-connected conditions alone have rendered the Veteran unemployable. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel