Citation Nr: 20004367 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 19-00 035 DATE: January 17, 2020 ORDER Entitlement to an effective date prior to July 27, 2016, for the grant of service connection for tinnitus is denied. Entitlement to an effective date prior to July 27, 2016, for the grant of service connection for adjustment disorder with depressed mood, secondary to service-connected left knee disabilities is denied. Entitlement to service connection for hypertension is denied. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. Entitlement to a higher disability rating for adjustment disorder with depressed mood of 30 percent, and not in excess thereof, from July 27, 2016, to June 14, 2019, and a disability rating of 70 percent, and not in excess thereof, from June 14, 2019, is granted. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), for the period from July 27, 2016, is granted. REMANDED Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss is remanded. Entitlement to a disability rating in excess of 20 percent for right knee instability is remanded. Entitlement to a disability rating in excess of 20 percent for left knee instability is remanded. Entitlement to a disability rating in excess of 10 percent for right knee degenerative arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for left knee degenerative arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for right tibia stress fracture is remanded. Entitlement to a disability rating in excess of 10 percent for left tibia stress fracture is remanded. Entitlement to an effective date prior to July 27, 2016, for the grant of service connection for right knee degenerative arthritis is remanded. Entitlement to an effective date prior to July 27, 2016, for the grant of service connection for right knee degenerative arthritis is remanded. Entitlement to a TDIU, for the period prior to July 27, 2016, is remanded. FINDINGS OF FACT 1. A November 2012 rating decision, which denied service connection for tinnitus, became final with respect to the tinnitus disability because the Veteran did not file a notice of disagreement within one year, nor was any additional evidence pertinent to the claim received within one year of that decision. 2. The Veteran did not file a formal or informal service connection claim for tinnitus between the November 2012 agency of original jurisdiction (AOJ) final disallowance and the submission of a VA Form 21-526EZ on July 27, 2016. 3. The Veteran did not file a formal or informal service-connection claim for a mental health condition prior to July 27, 2016. 4. The Veteran’s hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 5. Throughout the entire period on appeal, the Veteran is in receipt of the maximum schedular disability rating for tinnitus. 6. Prior to June 15, 2019, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 7. Beginning June 15, 2019, the severity, frequency, and duration of the Veteran’s symptoms more closely approximate occupational and social impairment with deficiencies in most areas. 8. Since July 27, 2016, the Veteran has met the schedular criteria for consideration of a TDIU, and during this time she has been precluded from substantial and gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to July 27, 2016, for the award of service connection for tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 2. The criteria for an effective date prior to July 27, 2016, for the award of service connection for adjustment disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for a disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, 4.87, Diagnostic Code 6260. 5. For the period from July 27, 2016, to June 14, 2019, the criteria for a disability rating of 30 percent, but not in excess thereof, for adjustment disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440. 6. The criteria for a disability rating of 70 percent, but no more from June 15, 2019, for adjustment disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440. 7. The criteria for an award of a TDIU have been met since July 27, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1991 to March 1994. The Board acknowledges that the Veteran raised the issue of entitlement to a TDIU as part and parcel of the present claims for higher disability ratings. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record during the appeal period pertaining to the increased rating claim. Effective Date The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999); Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006); see MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Thus, a claim, whether “formal” or “informal,” must be “in writing” in order to be considered a “claim” or “application” for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Moreover, the Court has explicitly stated that the “mere presence” of a diagnosis of a specific disorder in a VA medical report “does not establish an intent on the part of the veteran” to seek service connection for that disorder. Brannon v. West, 12 Vet. App. 32, 35 (1998); see MacPhee, 459 F.3d at 1326-27 (VA medical examination reports standing alone can constitute informal claim only with regard to claims that previously have been granted service connection); 38 C.F.R. § 3.155 (2016). Accordingly, the mere existence of medical records in a case cannot be construed as an informal claim. Id.; Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007), aff’d 541 F.3d 1364 (Fed.Cir.2008). 1. Entitlement to an effective date prior to July 27, 2016, for the grant of service connection for tinnitus is denied. The Veteran’s initial service connection claim for tinnitus was denied in a November 2012 rating decision. The Veteran was notified of the outcome by letter and did not file a notice of disagreement within one year, nor was any additional evidence pertinent to the claim received within one year of that decision. Thus, the November 2012 rating decision became final with regard to the tinnitus disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). On July 27, 2016, VA received a new claim for service connection for tinnitus. See July 2016 VA Form 21-526EZ. In an October 2016 rating decision, the AOJ reopened the Veteran’s claim and granted service connection for tinnitus. The October 2016 rating decision assigned a 10 percent disability rating to the Veteran’s service-connected tinnitus, effective July 27, 2016, the date the Veteran initiated a new claim for service connection following the final November 2012 disallowance. After reviewing the totality of the evidence, the Board finds that VA did not receive an application for compensation benefits for tinnitus, formal or informal, between the November 2012 final disallowance and submission of the July 26, 2016, VA Form 21-526EZ. The Board has reviewed the claims file, including the VA treatment records, and there is simply no indication on the part of the Veteran of any intent to file a claim for service connection for tinnitus between these dates. Moreover, the Veteran and her representative have also not identified any such claims. The pertinent regulations state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on consideration of these regulations and the former regulations governing informal claims, the effective date has been appropriately assigned as the date her claim was received following a prior final disallowance, July 26, 2016. While sympathetic to the Veteran’s belief that an earlier effective date is warranted, for the reasons outlined above, in this case the Board is precluded from assigning an effective date prior to July 26, 2016, for the grant of service connection tinnitus. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to July 26, 2016, for the award of service connection for tinnitus. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). 2. Entitlement to an effective date earlier than July 27, 2016, for the grant of service connection for adjustment disorder with depressed mood is denied. On July 27, 2016, VA received a claim for service connection for a mental health condition. See July 2016 VA Form 21-526EZ. In a December 2016 rating decision, the AOJ granted service connection for adjustment disorder with depressed mood, secondary to the Veteran’s service-connected left knee disabilities. The December 2016 rating decision assigned a noncompensable disability rating to the Veteran’s service-connected adjustment disorder, effective July 27, 2016, the date the Veteran submitted the claim on VA form 21-526EZ. After reviewing the totality of the evidence, the Board finds that VA did not receive an application for compensation benefits for mental health condition, formal or informal, prior to the submission of the July 26, 2016, VA Form 21-526EZ. The Board has reviewed the claims file, including the VA treatment records, and there is simply no indication on the part of the Veteran of any intent to file a claim for service connection for a mental health condition prior to this date. Moreover, the Veteran and her representative have also not identified any such claims. The pertinent regulations state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on consideration of these regulations and the former regulations governing informal claims, the effective date has been appropriately assigned as the date her claim was received, July 26, 2016. While sympathetic to the Veteran’s belief that an earlier effective date is warranted, for the reasons outlined above, in this case the Board is precluded from assigning an effective date prior to July 26, 2016, for the grant of service connection for an adjustment disorder. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to July 26, 2016, for the award of service connection for adjustment disorder. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). Service Connection 3. Entitlement to service connection for hypertension. The Veteran asserts that she has hypertension due to her active duty service. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of hypertension as evidenced by June 2018 VA treatment records. See June 2018 VA Primary Care Physician Note. Hypertension is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show that the Veteran was not diagnosed with hypertension until after blood pressure monitoring in April 2006, years after her separation from service and years outside of the applicable presumptive period. Service connection for hypertension may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hypertension and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Indeed, beyond the inclusion of hypertension on her July 2016 VA 21-526EZ, Fully Developed Claim, the Veteran has provided no statements or assertions as to support any theory of entitlement to service connection for hypertension. While a VA medical opinion has not been obtained, the Board finds that one is not required before adjudication of this appeal. VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159(c)(4)(i). There is simply no evidence establishing that an event, injury, or disease occurred in service, or establishing that hypertension manifested during an applicable presumptive period disability. Thus, the second prong of McLendon is not met. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 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. If 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. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 4. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. The Veteran contends that she is entitled to a higher disability rating for her tinnitus disability. However, the Veteran did not allege any specific facts or reasons as to why her tinnitus warrants a higher disability rating. The Veteran’s tinnitus is rated under 38 C.F.R. § 4.87, Diagnostic Code 6260, which provides a maximum 10 percent rating for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. As the Veteran is in receipt of the highest schedular rating for tinnitus, there is no basis to award a higher rating. The Board has also considered the other Diagnostic Codes pertaining to the ear. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). Here, the Veteran’s disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. Additionally, the evidence of record does not reflect that the Veteran has any other service-connected ear disabilities that would warrant a separate rating under a different Diagnostic Code. See 38 C.F.R. § 4.14. As the Veteran already has the maximum schedular disability rating for tinnitus, the appeal is denied. 5. Entitlement to a compensable disability rating for adjustment disorder with depressed mood. The Veteran asserts that symptoms associated with her service-connected adjustment disorder with depressed mood warrant a compensable disability rating. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a compensable disability rating. The Board concludes that the Veteran’s symptoms rose to the level of impairment required for a disability rating of 30 percent from July 27, 2016, to June 14, 2019, and for a 70 percent rating from June 14, 2019. Prior to June 14, 2019, the Veteran’s symptoms more closely approximated the symptoms associated with a 30 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. Beginning June 15, 2019, the Veteran’s symptoms have more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment most closely approximately the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. During a July 2016 VA psychology outpatient consultation, the Veteran appeared well-groomed with a euthymic mood and appropriate affect. Her behavior was appropriate, her thought processes were linear and devoid of psychotic features. She was oriented to person, place and time with no homicidal or suicidal ideations. Upon examination, the Veteran stated her primary stressor was pain and that she felt “worthless” because she could not perform functions that she used to. In October 2016, the Veteran underwent VA examination and was diagnosed with adjustment disorder with depressed mood. Upon examination, the Veteran endorsed sleep difficulties but noted that she slept approximately 10 hours per night. The Veteran’s mother reported that the Veteran had “fits of anger” but the Veteran did not believe she had an anger problem. She reported lowered motivation and frustration as a result of her physical health limitations with feelings of helplessness and hopelessness. The only symptom noted by the examiner was depressed mood. Thought processes were logical and organized and judgment, insight, and decision-making appeared intact. The examiner opined that the Veteran’s symptoms were not severe enough either to interfere with occupation and social function or to require continuous medication. VA treatment records from April 2017 to November 2017 indicate that the Veteran had mild depression and anxiety symptoms with logical and linear thought processes, intact impulse control, and fair judgment and insight. She had no harmful ideations, no delusions, and no thought or perceptual disturbances. See April 2017 VA Psychology E&M Note; May 2017 VA Psychiatry Outpatient E&M Note; May 2017 VA Psychology E&M Note; November 2017 VA Psychiatry E&M Note. During a May 2018 VA psychiatry evaluation, the Veteran indicated that she had good coping skills but reported that she had intermittent auditory hallucinations telling her to harm herself and others. However, she indicated that she was able to ignore those thoughts and distract herself. She requested anger management classes as she had recently experienced more difficulty controlling her anger. During a June 2018 VA psychotherapy appointment, the Veteran reported increased irritability and tension at home, as well as decreased socialization. During a July 2018 VA Mental Health consult, the Veteran endorsed increased irritability associated with chronic pain. Upon examination, she was alert and fully-oriented, her thought processes were well-organized, and her affect was cordial/pleasant with a positive mood. In June 2019, the Veteran underwent private examination by Dr. K.B. Upon examination, she endorsed the following symptoms: depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Dr. K.B. opined that it was her clinical opinion that the Veteran’s overall mental health symptoms were consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, and/or mood and had been at this severity level since at least the date of her VA disability claim, July 27, 2016. The Board finds that prior to June 15, 2019, the evidence of records supports a finding that the Veteran’s adjustment disorder with depressed mood disorder was productive of symptoms and resulting social and occupational impairment as that warrants a 30 percent rating. The Veteran’s symptoms included anxiety, depressed mood, anxiety, and chronic sleep impairment. The Board notes that the Veteran reported experiencing auditory hallucinations directing her to hurt herself or others, which is contemplated by the 70 percent criteria and is similar to persistent danger of hurting self or others, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s auditory hallucinations has not risen to the level contemplated by the 70 percent or 100 percent disability ratings. The Veteran reported experiencing these auditory hallucinations only once during a period of several years, and she denied any suicidal or homicidal ideation in existing treatment records, and during the October 2016 VA examination and June 2019 private examination. Additionally, while Dr. K.B. opined in her June 2019 examination report that the Veteran’s overall mental health symptoms were consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, and/or mood and have been at this severity level since at least the date of her VA disability claim, July 27, 2016, the Board finds that the contemporaneous VA treatment records from July 2016 to May 2018 more probative. Specifically, these contemporaneous VA treatment records indicate a less severe symptomology than that indicated by Dr. K.B. in her historical report of the Veteran’s disability. Further, in her June 2019 opinion, Dr. K.B. did not provide any additional rationale as to why the Veteran’s historical symptomatology equated to occupational and social impairment with deficiencies in most areas. Thus, the Board finds that a 30 percent disability rating for service-connected adjustment disorder is warranted prior to June 15, 2019, and a 70 percent disability rating is warranted from June 15, 2019. The lay and medical evidence of record does not show that the frequency, severity, and duration of the Veteran’s psychiatric symptoms resulted in occupational and social impairment that warrants an even higher rating than 30 percent prior to June 15, 2019, and higher than 70 percent from June 15, 2019. TDIU 6. Entitlement to a TDIU from July 27, 2016. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran asserts that her service-connected disabilities, specifically her adjustment disorder and bilateral knee and lower leg disabilities, have rendered her unemployable. The Veteran currently is in receipt of a 30 percent disability rating for adjustment disorder, a 20 percent disability rating each for instability of the bilateral knees with associated patellofemoral syndrome, a 10 percent disability rating each for bilateral tibia stress fractures, a10 percent disability rating each for bilateral degenerative arthritis of the knees, and a 10 percent disability rating for tinnitus. Noting that the Veteran’s bilateral knee and lower leg disabilities share a common etiology, the Veteran had one disability rated at 40 percent or more disabling, and she meets the schedular criteria for a TDIU from July 27, 2016. 38 C.F.R. § 4.16(a). The key question at issue is whether the Veteran’s service-connected disabilities, in and of themselves, have at least as likely as not, rendered her unable to secure or follow gainful employment at any time during the period under review. The evidence of record supports a finding that the Veteran’s service-connected disabilities at least as likely as not prevent her from obtaining or maintaining substantially gainful employment for the entire period on appeal. The Veteran has not worked since July 2016. She has four years of college education and specialized training as an airline reservations agent. See August 2019 Veteran’s Application for Increased Compensation Based on Unemployability. The determination of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that “applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.”). In describing unemployability, 38 C.F.R. § 4.18 notes that “consideration is to be given to the circumstances of employment in individual claims, and, if the employment was only occasional, intermittent, tryout or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability.” The Board is satisfied that the functional effects of the Veteran’s service-connected disabilities, namely her bilateral knee and lower leg disabilities and her adjustment disorder, preclude her from obtaining or maintaining substantially gainful employment. In a June 2019 medical opinion, Dr. H.S. opined that the Veteran would be unable to stand for 15 minutes without needing to lean on something due to knee pain, that she was only able to walk for one block – slowly and assisted with a cane, could sit for a total of 60 minutes at one time but would be uncomfortable and constantly shifting positions, and would be unable to carry more than 10 pounds. Further, Dr. H.S. stated that these issues would require the Veteran to miss or leave work early three or more days per month due to pain and limitations and would need more than one additional break aside from normally scheduled breaks. It was noted that the Veteran was in constant pain and often had difficulty concentrating and staying focused, slept poorly and night, and was unable to stay in one position for very long. Dr. H.S. opined, based on the totality of the evidence – including multiple VA examination reports and VA treatment records, that the Veteran’s mobility, severe pain, and physical and mental limitations rendered the Veteran unable to maintain substantially gainful employment as a result of her service-connected disabilities. In another June 2019 private medical opinion, Dr. K.B. opined that the Veteran’s depressive symptoms prevented the Veteran from being able to maintain substantial gainful employment. Dr. K.B. stated that her desire to isolate made it difficult for her to get along with co-workers and supervisors, and that her poor memory and concentration caused problems with completing work tasks. Additionally, the Veteran’s sleep disturbances would more likely than not lead to excessive absences from work and her mood swings and anger/agitation would also affect her ability to be productive and able to relate to others in the workplace. Dr. K.B. cited a variety of VA treatment and examination records and indicated that the Veteran’s depressive symptoms worsened over time and were exhibited for longer than six months – thus leading to a more appropriate diagnosis of unspecified depressive disorder. Dr. K.B. opined that it was her opinion that the Veteran was unable to sustain gainful employment due to her depressive symptoms. Based on the foregoing, and after resolving reasonable doubt in the Veteran’s favor, the Board finds that due to her service-connected disabilities, the Veteran has not been able to obtain or maintain substantially gainful employment since July 27, 2016. As such, TDIU is warranted for the period from July 27, 2016. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss is remanded. In cases where a substantive appeal was received on or after February 2, 2013, there is an automatic waiver of initial Agency of Original Jurisdiction (AOJ) review, if the veteran or his/her representative submits evidence to the AOJ or to the Board; however, this automatic waiver does not apply to VA-obtained evidence. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant’s representative requests in writing that the AOJ initially review such evidence). In his September 2019 brief, the Veteran’s representative included additional argument and attached private medical opinions, as well as identified medical records that could be relevant to the claim at hand and authorized VA to obtain these records. The Veteran’s representative also submitted a “Waiver of Consideration of Evidence by Regional Office” which expressly stated that regional office consideration was waived for the “attached” evidence. While the Veteran filed her substantive appeal in December 2018 and evidence submitted by the Veteran is therefore subject to initial review by the Board, the additional private medical records identified in September 2019 were obtained by VA at the Veteran’s request and not “attached” to the Veteran’s September 2019 brief, therefore waiver of consideration of such by the AOJ is not assumed. See 38 U.S.C. § 7105 (e)(1). Therefore, a remand is warranted in order for the AOJ to consider VA-obtained private medical records in the first instance. 2. Entitlement to a disability rating in excess of 20 percent for right knee instability is remanded. 3. Entitlement to a disability rating in excess of 20 percent for left knee instability is remanded. 4. Entitlement to a disability rating in excess of 10 percent for right knee degenerative arthritis is remanded. 5. Entitlement to a disability rating in excess of 10 percent for left knee degenerative arthritis is remanded. 6. Entitlement to a disability rating in excess of 10 percent for right tibia stress fracture is remanded. 7. Entitlement to a disability rating in excess of 10 percent for left tibia stress fracture is remanded. While the record contains a September 2016 VA examination regarding the Veteran’s bilateral knee and lower leg disabilities, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Specifically, the examiner initially noted that the Veteran experienced flare-ups with cold, rainy, and cloudy weather. However, the examiner then noted that the Veteran did not experience flare-ups and provided no further information regarding reported flare-ups or any additional functional loss suffered during flare-ups. Thus, remand is warranted so that the Veteran may be afforded a new examination that clarifies whether the Veteran experiences flare-ups and if any additional loss is suffered during these flare-ups. 8. Entitlement to an effective date prior to July 27, 2016, for the award of a separate disability rating for right knee degenerative arthritis is remanded. 9. Entitlement to an effective date earlier than July 27, 2016, for the award of a separate disability rating for left knee degenerative arthritis is remanded. The Veteran asserts that she is entitled to an effective date earlier than July 27, 2016, for the award of a separate disability rating for bilateral knee degenerative arthritis. The Veteran underwent VA examination in November 2018, at which time arthritis of the bilateral knees was not noted. However, prior VA treatment records indicate “arthritis” of the knees. See January 2015 Move Clinic Note; July 2016 Primary Care Secure Messaging. It is unclear whether these notations were based on the Veteran’s self-report or if VA practitioners or private medical providers had diagnosed the Veteran with arthritis. On remand, a medical opinion should be sought to clarify whether the Veteran suffered from bilateral knee degenerative arthritis prior to July 27, 2016. 10. Entitlement to a TDIU prior to July 27, 2016, is remanded. In June 2019 private medical opinions, Dr. H.S. and Dr. K.B. both indicated that the Veteran had been unable to sustain gainful employment due to her service-connected disabilities since “at least” July 27, 2016. As previously stated, a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Because a decision on the remanded issues of could significantly impact a decision on the issues of entitlement to a TDIU prior to July 27, 2016, the issues are inextricably intertwined. A remand of the claims is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral knee and lower leg disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). Additionally, the examiner is asked to clarify, to the best of their ability, the approximate date of onset for bilateral knee degenerative arthritis. The examiner should comment on VA treatment record notations of “arthritis” of the knees in January 2015 and July 2016. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to July 27, 2016. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. Thereafter, return the case to the Board for further appellate review, if otherwise in order. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.