Citation Nr: 20007175 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-31 404 DATE: January 28, 2020 ORDER Entitlement to a rating in excess of 50 percent for adjustment disorder with mixed anxiety and depression prior to February 19, 2016 and in excess of 70 percent for unspecified depressive disorder is denied. Entitlement to an evaluation in excess of 10 percent for right knee arthritis with painful limitation of flexion under Diagnostic Code 5260 (claimed as right knee strain) is denied. Entitlement to an evaluation in excess of 10 percent for left knee arthritis with pain limitation of flexion under Diagnostic Code 5260 (claimed as left knee strain) is denied. Entitlement to a separate evaluation of 20 percent for right knee cartilage damage, effective June 1, 2019 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence supports a finding that the Veteran’s acquired psychiatric disability, variously diagnosed as adjustment disorder with anxiety and depressive disorder most closely approximates the criteria for 50 percent prior to February 19, 2016 and 70 percent thereafter but not total occupational and social impairment at any time during the period of the appeal. 2. The Veteran’s right knee arthritis with painful limitation of flexion has not been manifested by flexion limited to 30 degrees, frequent episodes of locking, pain and effusion into the joint, or moderate recurrent subluxation or lateral instability. 3. The Veteran’s left knee arthritis with painful limitation of flexion has not been manifested by flexion limited to 30 degrees, frequent episodes of locking, pain and effusion into the joint, or moderate recurrent subluxation or lateral instability. 4. Since a May 22, 2019 magnetic resonance image, the Veteran’s right knee was found to have a large articular cartilage defect of the patella. 5. The Veteran’s service-connected disabilities, individually or in combination, do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for adjustment disorder with mixed anxiety and depression prior to February 2016 and in excess of 70 percent for unspecified depressive disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 9435 (2018). 2. The criteria for entitlement to an evaluation in excess of 10 percent for right knee arthritis with painful limitation of flexion under Diagnostic Code 5260 (claimed as right knee strain) have not been met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2018). 3. The criteria for entitlement to an evaluation in excess of 10 percent for left knee arthritis with pain limitation of flexion under Diagnostic Code 5260 (claimed as left knee strain) have not been met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2018). 4. The criteria for entitlement to a separate rating of 20 percent for right knee cartilage damage under Diagnostic Code 5258, effective May 22, 2017 have been met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258 (2018). 5. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training in the United States Army from January 2007 to June 2007 and active duty from October 2007 to March 2011 including service in Southwest Asia from September to November 2009. These matters are before the Board of Veterans’ Appeals (Board) on appeal from the May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claim for entitlement to TDIU; the January 2016 rating decision denying a rating in excess of 10 percent for both the right and left knee strain; and the November 2016 rating decision granting service connection for unspecified depressive disorder with an evaluation of 70 percent effective February 19, 2016. As the Veteran expressed disagreement with the denial of a TDIU in the May 2015 decision, and as the RO included the issue of a rating for the mental health disorder in an April 2017 statement of the case, the Board will consider ratings for the mental health disorder in excess of 50 percent prior to February 19, 2016 and in excess of 70 percent thereafter. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an evaluation in excess of 50 percent prior to February 19, 2016 and in excess of 70 percent thereafter for adjustment, anxiety, and unspecified depressive disorders The Veteran is seeking an increased rating for his service-connected unspecified depressive disorder. The Veteran’s unspecified depressive disorder is currently rated as 70 percent disabling under Diagnostic Code 9435 (DC 9435). Under the General Rating Formula for Mental Disorders, acquired psychiatric conditions including PTSD, a 70 percent disability rating will be assigned when the condition causes occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). 38 C.F.R. § 4.130. The symptoms listed in the rating criteria as possible examples of this impairment are: 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating requires total occupational and social impairment. Id. The symptoms listed in the rating criteria as possible examples of this impairment are: 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; memory loss for names of close relatives, own occupation, or own name. Id. The analysis is symptom-driven, based on the individual symptoms experienced by the Veteran; social impairment is considered but cannot be the sole basis for the disability rating. 38 C.F.R. § 4.126; see Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan 16 Vet. App. At 443. The Board should not limit its determination that a Veteran is not entitled to a higher rating based on the symptoms listed in the higher rating. Rather, the Board should consider whether “the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code,” and, if so, the “equivalent rating will be assigned.” Id. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture “more nearly approximates” the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. A thorough review of the evidence of record reflects that in a May 4, 2011 VA outpatient record, it is noted that the Veteran reported having thoughts of taking his life and have attempted suicide. See Capri, April 2012 at p.126 of 129. The examiner listed the sleep disturbances, impulsivity/poor self-control/anxiety/agitation as current risk factors. Id. The examiner noted, “given the Veteran’s presentation at the time of this assessment and considering the above noted risk and protective factors, in my clinical judgment the Veteran’s current risk potential for suicidal behavior is: Low RISK. Patient judged NOT to be a significant risk for self-harm.” Id. On May 12, 2011, a VA social worker spoke with the Veteran’s sister and she reported that the Veteran has been sleeping for most of the day every day, was very tearful and had suicide thoughts, stated that he would kill himself if was not for his daughter, described Veteran becoming angry without cause, and that he has become scary to his family. See Capri, November 2016 at p.159 of 208. In a May 12, 2011 VA mental health consult note, the Veteran reported to scheduled appointment with affect sad congruent mood. See Capri, November 2016 at p.158 of 208. The Veteran reported having uncontrollable anger that sometimes he cannot control. Veteran reported that he could not trust people and became tearful when talking about his issues of distrust. He reported a current but unstable relationship. It is noted that the Veteran reported having attempted suicide by medication overdose once five years earlier after his brother was shot. See Capri, April 2012 at p.126 of 129. The Veteran reported having been incarcerated for 8 months during his active duty and having been assaulted several times during the incarceration. (Service records note that this was a civilian offense, but the Veteran received a general discharge under honorable conditions, citing this offense and for driving under the influence on an Army post). The examiner noted that the Veteran was articulate, cooperative, but with depressed mood. Insight and judgment were impaired, but the Veteran had no current lethal ideation or any psychotic symptoms. The examiner diagnosed bipolar disorder and noted, “given the Veteran’s presentation at the time of this assessment and considering the above noted risk and protective factors, in my clinical judgment the Veteran’s current risk potential for suicidal behavior is: MODERATE RISK. Patient judged to be at increased risk of suicide but not acutely dangerous to self.” Id. at p.26 of 129. In July 2011, the RO granted service connection for adjustment disorder with mixed anxiety and depressed mood and assigned a rating of 30 percent, effective March 25, 2011, the day following discharge from service. The Veteran did not express disagreement but submitted a claim for an increased rating in January 2012. In April 2012, the Veteran underwent a VA mental health examination. The examiner did not review the file but diagnosed intermittent explosive disorder and major depressive disorder. The Veteran reported being married but that his wife was fearful of his anger. He reported unemployment as a mechanic because he did not like being around people. He did have a high school education and one semester of college prior to service. He reported nightmares, withdrawal, irritability, lack of anger control, depressed mood and panic attacks weekly or less often. The examiner also noted suicidal ideation without further comment. The examiner assessed the level of occupational and social impairment as causing reduced reliability and productivity. In October 2012, the RO granted a 50 percent rating for the mental health disability, effective January 11, 2012. The Veteran did not express timely disagreement. In December 2014, the Veteran submitted a claim for an increased rating for the mental health disability and for a TDIU. No additional medical or lay relevant evidence was placed in the file from October 2012 to December 2014. However, evidence of VA funded education since 2011 was associated with the file in 2017 and is discussed below. In May 2015, the Veteran was afforded a VA mental disorders examination. See C&P Exam, May 2015. The Veteran reported being married and living with one son. He reported attending his sophomore year in college using VA education funds while his wife worked. He reported two suicide attempts using medication overdoses in 2008in service and again in 2013 while working in Afghanistan. The examiner did not note a review of the file but noted that Veteran’s diagnoses were adjustment disorder with mixed anxiety and depressed mood, recurrent and alcohol use disorder. The examiner opined, “the Veteran continues to suffer from the established diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. He endorses suffering from symptoms of both anxiety and depression. There are no data supporting a formal diagnosis of a Bipolar Disorder. In my opinion, the severity of his depressive and anxiety symptoms is essentially unchanged from previously.” Id. at p.2 of 7. The examiner also opined, “he remains capable to perform work from a mental health perspective. He would quickly become irritable, agitated and withdrawn. The Veteran would not be able to provide a leadership role.” Id. The examiner noted that the Veteran’s adjustment disorder manifested as depressed mood, anxiety, irritability, sleep disturbances, and occasional difficulty concentrating. The examiner indicated that the Veteran’s adjustment disorder caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted that the Veteran’s adjustment disorder caused social avoidance, sitting with his back to the wall in public settings, quickness to take offense at perceived slights, and irritability. The examiner noted that the Veteran’s symptoms of depression include difficulty falling asleep, poor sleep quality, weight fluctuation, depressed mood, social isolation, infrequent suicidal thoughts, and diminished energy levels. The examiner noted that the Veteran’s symptoms of anxiety include recurrent irritability, subjective anxiety, and occasionally difficulty concentrating. The examiner noted that the Veteran attempted suicide twice and is currently not suicidal. In May 2015, the RO continued the 50 percent rating and denied a TIDU. The Veteran expressed disagreement with the TDIU denial. In a June 2015 mental health appointment, the Veteran reported he has been angry or sad, feels irritable when around others, perceives others to be selfish and “screw me over”, isolated, fears losing control of his anger, has anhedonia, loss of appetite, sleep disruption with an estimated 4 hours per night alternating with no sleep for 1-3 nights (with some visual disturbance after prolonged lack of sleep), low energy but able to complete tasks, poor concentration, hopelessness, and loss of esteem. See Capri, December 2015 at p.13 of 71. The Veteran reported a prior suicide attempt in 2013 while working in Afghanistan as a contractor and denied subsequent suicidal ideation. The Veteran reported that he does not have friends and generally isolates to avoid conflict with others. The Veteran reported that he feels he must quit his job as a security guard due to fears that he will lose control over his anger. The Veteran also reported that he feels judged by his appearance and being reserved, and when he becomes assertive has been told that he becomes mean. The Veteran reported that he quit his job as a contractor in Afghanistan due to difficulties getting along with others. Id.at p.14 of 71. The examiner listed the risk factors as mental health sleep disturbances (unable to sleep or sleeping all the time), and impulsivity/poor self-control/anxiety/agitation. Id. at p.15 of 71. The examiner noted, “given the Veteran’s presentation at the time of this assessment and considering the above noted risk and protective factors, in my clinical judgment the Veteran’s current risk potential for suicidal behavior is: Low RISK. Patient judged NOT to be a significant risk for self-harm.” Id. In a July 2015 VA individual psychotherapy appointment, the Veteran reported low mood past few days, stated he tends to stay home more often when depressed in order to avoid being irritated by other people, recognized that his anger is often disproportionate to the situation, denied becoming physically aggressive toward others and stated he often feels sad, tearful in response to his anger. See Capri, December 2015 at p.5 of 71. In an August 2015 VA individual psychotherapy appointment, the Veteran reported an incident where his mother-in-law came to his home, argued with his wife, and he removed his mother-in-law for his wife’s safety. See Capri, December 2015 at p.3 of 71. The Veteran reported that his mother-in-law pressed assault charges, that he has court later this month as a result, and he has been more depressed and has been drinking more to cope since the incident. The Veteran also reported having hallucinations described as the walls and ceilings closing in and lines on the road moving. In February 2016 VA mental health screening, the Veteran reported that he attempted suicide twice. See Capri, April 2016. However, a social worker also noted his reports of a recent marital separation, worry about the legal charges, but also that he was attending school, doing well, and expected to finish this year. In May 2016, the Veteran was afforded another VA mental disorders examination. See C&P Exam, May 2016. The Veteran was diagnosed with intermittent explosive disorder, unspecified depressive disorder, and moderate alcohol use disorder. The examiner indicated that the Veteran’s had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he continued to attend college pursuing an associate degree in power plant technology, was receiving average grades and expected to graduate in the fall of 2016. He had been working as a security officer but reportedly was fired because of an altercation with a customer. The examiner indicated that the Veteran active symptoms were depressed mood, suspiciousness, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner noted that the Veteran reported a history of attempted overdoses in 2008 and 2013. The examiner noted that the Veteran did not endorse symptoms typically associated with mood instability and that his symptoms do not appear to be tied to a particular stressor. The examiner noted that the Veteran “described feelings of guilt and worthlessness. He endorsed significant sleep disruption and passive thoughts of death. While it does not appear that he meets diagnostic criteria for an episode of Major Depression, he does report symptoms of such severity that an Adjustment Disorder is ruled out. The new diagnosis offered in its stead is Unspecified Depressive Disorder.” Id. at p.7 of 7. On July 27, 2016, the Veteran sent a secure message to his primary care provider that he was going to maybe commit suicide. See Capri, November 2016 at p.25 of 37. On July 28, 2016, the provider noted that he made contact with the Veteran and the Veteran reported that he was having thoughts of suicide yesterday and has had these thoughts often. Id. at p.29 of 37. In an August 2016 VA mental disorders addendum opinion, the examiner opined, “[T]he diagnosed Unspecified Depressive Disorder is more likely than not a progression/evolution of the service-connected Adjustment Disorder, With Mixed Anxiety and Depression. As noted in the original report, it represents increased severity of mood related symptoms.” See C&P Exam, August 2019. In a September 14, 2016 VA mental health appointment, the Veteran reported that while he was incarcerated in service someone tried to stab him with a knife while he was washing his hair, managed to fight off this man, had to beat the man with a sock full of domino’s in order to ensure that this did not happen again, and he shaved his head following that incident to ensure that this did not happen again, that he would not be caught unaware. See Capri, November 2016 at p.12 of 37. The Veteran reported anger and irritability with mood swings. Id. He also reported that he was recently in a fight with a person who he was bouncing from the bar, and once he took him outside, he proceeded to beat him up. Id. He denied exaggerated startle response and reported difficulty concentrating. Id. However, the clinician also noted, Biologically the patient is in good health and great shape, he maintains a regular work out routine… Psychologically he has an external locus of control and is consistently in the role of victim, he has several maladaptive defense mechanisms due to a lifetime of abandonment, abuse, and misfortune. He has several distorted cognitions and a pervasive belief that people are out to harm him. His symptoms are consistent with MDD and meet the timeframe but are largely linked to his adjustment following the traumatic experience which occurred. He may have full blown PTSD but currently the patient is so evasive and distrustful with the interview that it is hard to determine on this initial visit. The patient is a help-rejecting complainer who came here for medications then refuses them once offered. Socially he has isolated himself and his separation from his wife has further isolated him. He denies all suicidal thoughts or plans but he is a moderate risk due to his sleep disturbance, alcohol abuse, recent divorce, male, living alone, and history of abuse. In a September 16, 2016 VA suicide prevention telephone interview, the Veteran reported that he drinks heavily as a coping mechanism. See Capri, November 2016 at p.9 of 37. The Veteran reported that he thought of suicide last night and when asked if he would benefit from talking to someone in the emergency department that day, he stated no and that he has managed to distract himself from the thoughts and urges. Id. The clinician noted that Veteran’s risk factors as the Veteran, himself, his family, mental health diagnoses, sleep disturbances, an impulsivity/poor self-control/anxiety/agitation. Id. at p.10 of 37. The clinician also noted, “[G]iven the veteran’s presentation at the time of this assessment and considering the above noted risk and protective factors, in my clinical judgment the veteran’s current risk potential for suicidal behavior is: MODERATE RISK. Patient judged to be at increased risk of suicide but not acutely dangerous to self.” Id. In an October 2016 VA mental health appointment, the examiner noted that Veteran had an external locus of control and is consistently in the role of the victim, has several maladaptive defense mechanisms due to a lifetime of abandonment, abuse, and misfortune, has several distorted cognitions and a pervasive belief that people are out to harm him. See Capri, November 2016 at p.4 of 37. The Veteran was diagnosed with adjustment disorder with depressed mood, schizoid personality disorder, and acute distress disorder. Id. at p.5 of 37. The Veteran reported thoughts about taking his life within the past two weeks. Id. at p.7 of 37. In November 2016, the RO granted a rating of 70 percent for the mental health disability, effective February 19, 2016. Since that decision, VA outpatient records show that the Veteran continued to receive VA mental health therapy. Primary care records are generally silent for any mental health exacerbations, and the therapy sessions show a much less severe level of impairment. In a May 2017 mental health therapy encounter, the social worker noted, Veteran reports he trains and competes in martial arts and may be able to go professional possibly this summer due to his success. He is currently in school studying Building Plant Maintenance which is a field where he can work and be left alone which he seeks to maintain control. Veteran is close with his sister, 2 years his senior, the only family member he is connected to. Veteran declines medication to manage symptoms but is amenable to therapy as an approach to managing his emotions and impulses and is agreeable to every 2-3-week sessions. In July 2017 mental health therapy encounter, the social worker noted, Veteran reported the past two months since our last session has been focused on training for upcoming professional debut fight in August, completing his Associates degree in Building Plant Management and moving into a house with his sister and her children. Veteran will finish his degree in two weeks and will then shadow for up to 80 hours at a naval facility plant as the completion of his education but also as an "audition" potentially for employment at the plant… Veteran denied SI/HI, intent, plans or attempts. He exhibits no symptoms of thought disorder. In August 2017, a clinician noted that the Veteran denied ever having a suicide attempt. A large file of VA education records was associated with the claims file in 2017. These records show that the Veteran was attending VA funded education at several technical or college level programs from May 2011 through August 2016. Although one course appeared to be a distance learning program, two institutions were in the Veterans home area. In December 2016, the Veteran applied for further VA funded vocational/rehabilitation services. The Veteran prepared a resume in March 2017 citing his experience and education. In a Rehabilitation Needs Inventory, the Veteran reported work experience as a maintenance technician from May to November 2013, a waste management technician from January to June 2014, and part time work in security from 2014 to 2016. A counselor acknowledged the Veteran mental health disabilities including anxiety, lack of anger control, difficulty working with others, and restrictions on driving due to legal charges. On the other hand, the counselor noted that the Veteran had skills as a mechanic and ability to read schematics and use a computer. The Board finds that a rating in excess of 50 percent for adjustment disorder with mixed anxiety and depression prior to February 2016 and in excess of 70 percent for unspecified depressive disorder 70 percent is not warranted. The Board acknowledges the history of reports by the Veteran of lack of anger control leading to legal charges, loss of security job, difficulty working with people and marital discord. The Board also acknowledges the Veteran’s reports of a suicide attempt in 2013 while deployed to Afghanistan, other reports of suicidal ideations, and on one occasion a report of visual hallucinations. However, the Board places low probative weight on these reports because they are inconsistent, not persistent, were later denied during therapy sessions, and do not show an impact on social and occupational impairment. The current ratings do contemplate difficulties in social interaction and sustained employment, but the Board also places weight on the Veteran’s successful VA funded education throughout the period of the appeal. This demonstrated a capacity for clear thought, communications, and ability to engage in a classroom or other educational environment. There are no reports or observations of an inability to perform daily activities, leave the home, or drive a vehicle when not prohibited because of a driving under the influence offense. Since the assignment of a 70 percent rating, the Veteran completed his education program and was receiving VA vocational counseling. His resume suggested he has the capacity and desire to use his educational skills in the commercial business environment. He also reported success as a martial arts competitor and desired to engage in professional bouts. This may be consistent with his explosive personality but also indicates the ability to work with trainers and promoters in a productive capacity. The Veteran was charged for domestic violence on one occasion but there is no evidence that the charge was sustained. The Veteran has not exhibited gross impairment in thought processes and communication, grossly inappropriate behavior, or has exhibited persistent danger of hurting self or others during the period of the appeal as the reported assaults and ideations were widely spaced and offset by the Veteran’s performance in school, relationship with sister and one child, and success in sports. Based on the weight of competent and credible evidence, the Board does not find that the Veteran met the 70 percent level of social and occupational impairment prior to February 2016, and at no time was the level of impairment at the total level. 2. Entitlement to an evaluation in excess of 10 percent for right knee arthritis with painful limitation of flexion under Diagnostic Code 5260 (claimed as right knee strain) 3. Entitlement to an evaluation in excess of 10 percent for left knee arthritis with painful limitation of flexion under Diagnostic Code 5260 (claimed as left knee strain) 4. Entitlement to a separate rating of 20 percent for right knee arthritis with painful limitation of extension under Diagnostic Code 5258 From May 22, 2017 The Veteran is seeking an increased rating for his service-connected right and left knee conditions. The Veteran’s right and left knee conditions are each currently rated as 10 percent disabling under Diagnostic Code 5260 (DC 5260). Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA’s General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). Other knee impairment including recurrent subluxation or lateral instability warrants a 10 percent rating if the disability is slight; a 20 percent rating if moderate; and a 30 percent rating if severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Evaluation of a knee disability for limitation motion under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 or 5261 does not preclude, as a matter of law, separate evaluation of a meniscal disability of the same knee under 38 C.F.R. § 4.71a, Diagnostic Code 5259. Nor does evaluation of a meniscal disability under § 4.71a, Diagnostic Code 5259 preclude, as a matter of law, separate evaluation of a different disability of the same knee under § 4.71a, Diagnostic Code 5260 or 5261. See Lyles v Shulkin, 29 Vet. App. 107 (2017). As there is no lay or medical evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum, Diagnostic Codes associated with these manifestations do not apply. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263 (2015). In January 2012, magnetic resonance imaging studies of both knees showed moderate chondromalacia patella, small joint effusion and popliteal cyst (Baker’s cysts) in October 2012. See C&P Exam, April 2012; see also Capri, October 2012. In April 2012, an examiner noted these results and the Veteran’s report of bilateral knee throbbing and swelling after running. Range of motion was normal. Instability was not tested and there were no observations of cartilage damage. In October 2012, the RO granted service connection for right and left knee strain and assigned each a 10 percent rating based on painful motion. In September 2015, the Veterans submitted an application for increased ratings for degenerative arthritis of the left knee secondary to left knee strain and degenerative arthritis of the right knee secondary to right knee strain. See VA Form 21-526EZ, September 2015. A September 2015 VA right knee MRI showed thinning and irregularity along the lateral patellar facet with underlying subchondral edema and sclerosis and lateral facet osteophyte formation along both articular surfaces. See Capri, February 2019 at p.6 of 17. The Veteran was diagnosed with a large complex popliteal (Baker’s)cyst, patella alta, lateral patellar tilt, and advanced chondrosis along the lateral patellofemoral facets. Id. A September 2015 VA left knee MRI showed joint effusion, irregularity and fissuring along the patellar eminence and lateral patellar facet with underlying subchondral edema noted along the lateral patellar facet. See Capri, February 2019 at p.8 of 17. The Veteran was diagnosed with a small Baker’s cyst and Patella alta, lateral patellar tilt and advanced chondrosis along the lateral patellofemoral joint. Id. In December 2015, the Veteran was afforded a VA knee examination. See C&P Exam, December 2015. The examiner indicated that he conducted an in-person interview but did not review the VA E-folder, VA claims file, or any medical history records. The examiner did note a diagnosis of bilateral knee strain in 2007. The examiner inconsistently noted, “[F]or the claimant’s claimed condition of right knee arthritis, there is no diagnosis because there is no pathology to render a diagnosis. For the claimant’s claimed condition of the left knee arthritis, there is no diagnosis because there is no pathology to render a diagnosis. For the VA to establish diagnosis of strain, right knee, there is no change in the diagnosis. At this time the claimant’s condition is active. For the VA to establish diagnosis of strain, left knee, there is no change in the diagnosis. At this time the claimant’s condition is active.” Id. at p.3 of 12. The Veteran described the flare-ups of his chronic bilateral knee pain as limitation of squatting/kneeling, running, and using stairs. The Veteran’s bilateral flexion was 140 degrees, and extension was zero degrees with pain noted on flexion and extension of the right knee and on flexion of the left knee. Evidence of pain with weight bearing was noted bilaterally. No additional loss of range of motion was noted after repetitive use bilaterally. No reduced muscle strength, atrophy, or ankylosis was noted. All joint stability testing was normal. The examiner noted that the Veteran’s bilateral knee condition impacted his ability to stand/ambulate, use stairs, squat, kneel and run. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Id. In this instance, the Board finds that the December 2015 VA examination was inadequate because the examiner failed to review the Veteran’s medical records which included 2012 radiology reports reflecting changes in the Veteran’s bilateral knee condition and the October 2012 VA orthopedic surgery note reflecting a diagnosis of patella-femoral arthritis and popliteal cyst. See C&P Exam, April 2012; see also Capri, October 2012. Additionally, because of the examiners failure to review any medical records, the conclusions are unsupported. During a January 2016 VA individual psychotherapy session, the Veteran reported that he has frequent aching pain in his knees that make it hard for him to drive and intensifies with standing and driving. See Capri, April 2016. In a November 2018, VA primary care appointment, the Veteran complained of bilateral knee pain with discomfort in his lower back and buttocks area with numbness. See Capri, November 2018 at p.2 of 88. A November 2018 VA x-ray of knees showed minimal bilateral tricompartmental osteoarthritis most involving the medial tibiofemoral joint line and calcification projects within the soft tissues overlying the posterior right knee, possibly prior injury. See Capri, February 2019 at p.1 of 17. On January 29, 2019, the Veteran was afforded a VA knee examination. See C&P Exam, January 2019. The examiner noted no record review but cited previous diagnoses of bilateral knee strain, bilateral degenerative arthritis, and bilateral Baker’s cyst. The Veteran reported that cold weather causes flare of bilateral knees involving swelling and stiffness with difficulty standing and walking/weight bearing. The Veteran’s right knee flexion was 100 degrees and extension zero degrees with pain on motion for both movements. The Veteran’s left knee flexion as 90 degrees, and extension was zero degrees with pain noted on both movements. Evidence of pain with weight bearing and objective evidence of crepitus were noted bilaterally. The examiner estimated a reduction of function during flare-ups of 80 to zero degrees on the right and 70 to zero degrees on the left. The Veteran’s left knee flare-ups causes pain, weakness, and decreased flexion and extension of 70 degrees. There was no observed joint instability, recurrent subluxation, or meniscal damage. No atrophy or ankylosis was noted. Objective evidence of pain on non-weight bearing of right knee was noted in the left knee only. The examiner noted that the Veteran’s arthritis and Baker’s cysts developed from the Veteran’s bilateral knee strain. A May 2019 MRI of the right knee showed small osteophyte medial femoral condyle, high grade chondral lesion lateral patellar facet, and a Bakers cyst containing multiple osteochondral bodies. See Capri, September 2019 at p.18 of 31. In May 2019 imaging and in June 2019 evaluation, the Veteran was diagnosed with right knee large articular cartilage defect of the patella, patellofemoral maltracking, pes anserinus bursitis, Baker’s cyst, knee pain, and SI joint dysfunction. Id. Based on the weight of competent and credible evidence, an increased rating in excess of 10 percent each for the Veteran’s right and left knee arthritis with painful limitation of flexion under Diagnostic Code 5260 is not warranted. Flexion was consistently shown to be greater than 60 degrees including on repetition and estimates during flare-ups. Extension was uniformly measured as zero degrees The Board has considered the applicability of rating by analogy under other diagnostic codes, and no other diagnostic code is for application in this case. Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (DC 5257). In this instance, there is no evidence of record to suggest that the Veteran has recurrent subluxation or lateral instability in either the right or left knee. Therefore, the Board finds that a separate rating under DC 5257 is not warranted at this time. Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (DC 5258). In this instance, cartilage defect of the right knee was first noted in a May 22, 2019 magnetic resonance image. Therefore, the Board finds that a separate rating under DC 5258 is warranted from that date. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (DC 5259). In this instance, there is no evidence of record to suggest that the Veteran has had semilunar cartilage removed from either knee. Therefore, the Board finds that a separate rating under DC 5259 is not warranted at this time. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) effective March 22, 2017 In December 2014, the Veteran submitted an application for TDIU due to service-connected mental condition. See VA Form 21-8940, December 2014; see also VA Form 21-526EZ, December 2014. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). Disability evaluations are determined by evaluating the extent that a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16. In this case, the Veteran is service-connected for unspecified depressive disorder (70 percent from February 19, 2016), adjustment disorder with anxiety and depressed mood (50 percent from February 19, 2016), bilateral pes planus (30 percent from July 13, 2015), degenerative arthritis of the spine (20 percent from November 25, 2018), left lower extremity radiculopathy (20 percent from August 13, 2019), right lower extremity radiculopathy (20 percent from September 16, 2019), right knee strain (10 percent from March 25, 2011), left knee strain (10 percent from March 25, 2011), right ankle strain (10 percent from March 2011), right hip limitation of extension (10 percent from September 16, 2019), right hip limitation of flexion (noncompensable rating from September 16, 2019), and rip hip impairment of the thigh (noncompensable rating from September 16, 2019); for a combined rating of 90 percent. See Rating Decision-Codesheet, November 2019. In the November 2016 rating decision, granting service connection for unspecified depressive disorder with an evaluation of 70 percent effective February 19, 2016. Therefore, satisfying the ratings criteria for TDIU. The ultimate question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to TDIU. In determining whether unemployability exists, consideration may be given to the claimant’s level of education, special training and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board refers to the summary of lay and medical evidence provided above in the section for evaluation of the service-connected mental health disorder as is relevant to occupational capacity and impairment. In this case, in a February 2016 VA individual psychotherapy session, the Veteran reported that he was attending school, doing well, and he looked forward to finishing later that year. See Capri, April 2016. On a March 2017 VA Rehabilitation Needs Inventory (RIN) form, the Veteran reported having suicidal ideation and difficulty maintaining control of temper. See Other (VA Form 28-1902w), March 2017. In a March 22, 2017 VA counseling record narrative report, the Veteran reported that (1) his most recent job was working less than part time as an unlicensed security guard for a local band from 2014 to 2016 until a customer filed a criminal complaint against the Veteran; (2) he worked as a fleet maintenance technician for Waste Management until the Veteran left the job before issues with management could be resolved from January 29, 2014 to June 2014; and (3) he worked overseas as a Maintenance Technician for PD Systems as a contractor in Afghanistan from May 2013 to November 2013, until the contract ended. See Other (VA Form 28-1902b), March 2017. As discussed above, the Veteran successfully completed VA programs of education and vocational training from 2011 to 2016. The Veteran also reported that he has a driver’s license, is currently out on bond, has two DUI’s, a misdemeanor, and during periods of unemployment, the Veteran has sold blood and plasma in the past. The counselor noted that the Veteran has transferable skills in mechanical work, reading schematics, and computer skills. The Veteran reported having issues with anxiety, a low tolerance for being able to deal with problems, emotional lability, and issues with authority due to his service-connected mood disorder and chronic adjustment disorder. The Veteran also reported he has not been participating in mental health treatment and is not taking any medication due to having been told that his liver problems are due to the psychiatric medication. The Veteran that special insoles do not help with his bilateral pes planus. The counselor noted that he reported that he is able to tolerate walking/standing for long periods of time. The Veteran also reported that his ankle condition does not limit his work and that he is able to tolerate the pain from his knees when walking/standing for long periods of time when utilizing his knee braces. The counselor noted that the Veteran’s “service-connected disabilities significantly contribute to his impairment to employability as his mood disorder and chronic adjustment disorder hinder his ability to work with others, control his emotions/anger and he has issues with people in authority positions.” Id. at p.3 of 4. The counselor also noted, “[T]he Veteran has not overcome the effects of his impairment to employability. He continues to experience problems working with others, has only worked three jobs since May 2013 and has not held those jobs for an extended period of time. He has previously left jobs due to having issues with coworkers/contract position or getting into an altercation as a security guard.” Id. The counselor indicated that the Veteran meets the criteria for an employment handicap due to the fact that the Veteran’s service-connected disabilities contribute in substantial part to the vocational impairment and the Veteran has not overcome the effects of the impairment through further education, transferable skills, or obtaining and maintaining suitable work. In an April 2017 functional ability request form and a psychiatric information request form, a VA provider noted that the Veteran was currently able to work, full-time, any shift of the day. See Other, April 2017. The provider did not address any issues raised in the March 2017 VA counseling narrative. In July 2017, a recommendation was made for the Veteran to have another comprehensive psychiatric evaluation and functional capacity evaluation to determine the severity of the Veteran’s limitations due to his service-connected mental conditions and the feasibility of employment. See Other (VA email), July 2017. The Board considered the Veteran’s educational achievements, his self-prepared resume, and the comments by VA therapists since 2016, including those observations cited in May and July 2017 involving skills that are suitable for work in a solitary setting as a plant maintenance supervisor and his desire to engage in a professional martial arts competition. The Board acknowledges that the Veteran has a high rating for his mental health disorder and a combined rating of 90 percent which contemplates occupational impairment. However, he successfully completed additional education and was seeking employment to put that to practice. His orthopedic disabilities do not appear consistent with his martial arts skills and desires for competition. The Board finds that the weight of lay and medical evidence does not support the assignment of a TDIU at any time during the period of the appeal. Although the Veteran lost one job in security because of an altercation, he was able to work overseas until the contract ended. The combination of his success in eduction, desire for full time work, and his desire for martial arts competition weighs against a finding that he is precluded from securing or following substantially gainful employment. 38 U.S.C. § 5107 (b); see Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, Associate Counsel 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.