Citation Nr: 20074875 Decision Date: 11/23/20 Archive Date: 11/23/20 DOCKET NO. 15-19 078 DATE: November 23, 2020 ORDER The claim of entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied. The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is denied. The claim of entitlement to an initial rating in excess of 10 percent for low back strain with sciatica is denied. The claim of entitlement to a rating in excess of 10 percent for postoperative right knee chondromalacia with degenerative changes is denied. The claim of entitlement to a compensable rating for right knee varus and valgus laxity is denied. The claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the competent evidence is against a finding that the Veteran’s TBI, to include any related residuals, began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran is not shown to have a diagnosis of an acquired psychiatric disorder, to include PTSD and/or depression, that is due to a verified assault stressor or another documented event or incident of his period of active service. 3. Throughout the applicable period, the Veteran’s service-connected low back strain did not manifest by incapacitating episodes, forward flexion of the thoracolumbar spine to less than 60 degrees, combined range of motion (ROM) to 120 degrees or less, abnormal gait or muscle spasm resulting in abnormal contour, or ankylosis. 4. Throughout the applicable period, the Veteran’s service-connected right knee chondromalacia with degenerative changes is manifested by painful and limited motion. 5. Throughout the applicable period, the Veteran’s service-connected right knee varus and valgus laxity is not demonstrated. 6. The Veteran’s service-connected disabilities include bilateral knee disorders, a low back disorder, right leg shortening and a right knee scar. The combined rating has never been more than 60 percent. 7. Service-connected disability or disabilities have not prevented the Veteran from obtaining and maintaining substantially gainful employment consistent with his level of education and work history on a schedular or extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a TBI, to include any related residuals, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for establishing entitlement to service connection for an acquired psychiatric disorder, to include PTSD and/or depression, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for entitlement to an evaluation in excess of 10 percent for low back strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2019). 4. The criteria for a disability rating in excess of 10 percent for right knee chondromalacia with degenerative changes have not been met for any part of the rating period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5010-5260, 5261 (2019). 5. The criteria for a compensable disability rating for right knee varus and valgus laxity have not been met for any part of the rating period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2019). 6. The criteria for entitlement to a TDIU have not been met and referral for extraschedular consideration is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1986 to October 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In January 2018, the Veteran was afforded a videoconference hearing before the undersigned. A transcript of the hearing has been associated with the claim file. In a July 2018 Board decision, the application to reopen the previously denied claim of service connection for PTSD was granted. The reopened claim, to include depression and PTSD, was remanded for additional development. Also remanded at that time for additional development were the issues of service connection for residuals of TBI, entitlement to increased ratings for service-connected low back and right knee disorders, and entitlement to a TDIU. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime) (2012); 38 C.F.R. § 3.303(a) (2019). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A claim for service connection for a psychiatric disability is deemed to encompass all psychiatric diagnoses reasonably presented in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. Background As to the issues of service connection for an acquired psychiatric disorder and for residuals of TBI, it is contended that these disorders resulted from in-service personal assaults during boot camp. At the 2018 hearing, the Veteran provided details as to alleged incidents, to include that he was tortured, beaten, and starved by “Lieutenant Colonel Burns,” the post Commander. He was placed in solitary confinement and was hit or kicked in the head many times. Ultimately, there was a court martial, and the Veteran was the “star witness.” In an August 2020 brief, the Veteran’s attorney points to multiple in-service marking of personal trauma within his service treatments records (STRs) and personnel records, to include that he spent over 5 months in basic training rather than the usual 6 weeks reflecting issues were clearly at hand. Moreover, the Veteran obtained a stress fracture of the talus-calcaneus area (a fracture most commonly found in high energy traumas), he lost 30 pounds in 5 months, and complained of headaches, nausea, dizziness, tenderness, sinus problems and syncope, and within 20 days of headaches, he started receiving disciplinary actions for mistakes at work, lying to his commander, being disrespectful, having conflicts with others, and not meeting military standards. In a September 2020 statement, the Veteran further detailed his alleged in-service physical and mental abuse which he alleges started during basic training. His drill sergeant stomped on his right foot and broke his ankle. He experienced emotional and physical abuse at the hands of his superiors. They tried to get him to quit. They kept him imprisoned in the barracks an in basic training for approximately 6 months. He feared for his life the entire time he was there. Eventually, his superiors were court martialed and reassigned to different bases for his mistreatment. He continued to have problems at Ft. Rucker, to include problems with concentrating, sleep disturbance, and uncontrollable anger. He was disrespectful to his superiors and was kicked in the knee by one, resulting in a cast for another six months. After his discharge, he remained a recluse from his family and society. He was unstable, and his family wanted nothing to do with him. He lived in a shack with no running water or electricity. He contended that the military participated in a cover up and collusion. A review of the service treatment records (STRs) reflects a history of head injury and depression and worry at service entrance. No chronic disorders were indicated. He weighed 194 pounds. During service, in March 1987, the Veteran was treated for a headache. It was noted that he was “seeing stars.” There was nausea and dizziness. A possible sinus headache was noted. A classic migraine was assessed. At service separation, a history of head injury was again noted. He weighed 187 pounds. Post service records include a private report dated in December 1995 at which time an electroencephalogram (EEG) was performed. The test suggested prior head trauma residuals. A psychological report dated in May 1996 noted a history of childhood abuse which included head trauma and being choked. Subsequently VA records dated from 2003 forward reflect treatment for depression and other psychiatric symptoms. In 2009, while being treated for depression, the Veteran stated that he was in a motor vehicle accident (MVA) in 1999 with trauma to the left hand. A 2010 VA report diagnosed major depressive disorder (MDD). A private licensed psychologist reported in November 2010 that the Veteran had acquired psychiatric disorders of PTSD, bipolar disorder, and dysthymia due to pre-service abuse by his adoptive father and his step-father. This abuse included repeated trauma to the head, as well as in-service abuse. Specifically, the Veteran claimed that he was tortured during service for something that he witnessed. His foot was broken three times, and he was beaten repeatedly. A Social Security Administration (SSA) document from December 2015 shows that the Veteran was granted benefits from September 2008 for anxiety disorders (primary diagnosis) and for affective/mood disorders (secondary diagnosis). Additional VA treatment records dated through 2019 show diagnosis of PTSD and severe major depression with psychotic features. These records include a VA report from August 2017 which includes notation by the Veteran’s soon to be ex-wife that the Veteran lied repeatedly, to include about her treatment of him and his service experiences. She disputed the fact that the Veteran was beaten/tortured during service and that a court martial took place. She was informed of the Veteran’s falsehoods regarding his in-service experiences by his brother. Following the Board’s 2018 remand, correspondence to the Veteran dated in May 2019 requested additional evidence from the Veteran to substantiate his in-service claims. There was no response. When examined by VA in November 2019 regarding the issues of service connection for residuals of head trauma and for any acquired psychiatric disorder, separate examinations were conducted. As for residuals of head trauma, following review of the claim file and an in-person examination, it was the VA examiner’s conclusion that residuals of TBI were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. For rationale, it was noted that any incident of assault during service was not supported in the file. It was pointed out that when seen during service for headaches and seeing stars, there was no report of loss of consciousness or post traumatic amnesia. The onset of subjective symptoms of headache and memory impairment were not described by the Veteran or documented in the medical record in temporal relationship to the alleged incident. The examiner noted that there was a 1995 EEG which showed findings consistent with TBI. Thus, the opinion was that there was a TBI diagnosis. However, the causative event was unclear. The medical record included assessments from psychologist and psychiatrists documenting reported abuse with potential head injury during the Veteran’s childhood. He denied such abuse at the time of this evaluation. As a result, the etiology of the TBI was therefore unclear, and the examiner stated that he/she would need to resort to speculation to determine the associated causative factors. Since the medical record did not provide documentation of diagnosis of TBI after alleged in-service assaults, the examiner opined that TBI was less likely than not incurred in or caused by service. Upon VA examination regarding an acquired psychiatric disorder in October 2019, the diagnosis was PTSD. The examiner noted that the claims file was reviewed, and his report included an in-person examination. It was his opinion that the Veteran’s PTSD was related to in-service abuse by his drill sergeant. VA treatment records dated in 2019 and 2020 reflect ongoing mental health treatment for unspecified related trauma. In a July 2020 report, a private physician opined that it was likely as not that the Veteran’s PTSD and TBI were a direct result of in-service trauma he experienced. Entitlement to service connection for residuals of a TBI While the Board is sympathetic to the Veteran’s subjective belief that he suffers from a TBI and related residuals due to in-service head injuries from personal assaults, the medical evidence does not support his contentions. As summarized above, while there is a preservice history of head injuries, no chronic head disorder was noted at time of service entrance or service separation. Many years post service, in 1995, EEG was suggestive of prior head trauma. Subsequently dated records, to include 2019 VA examination and private report from July 2020 also show residuals of TBI. However, there is no objective evidence to corroborate that the Veteran suffered any in-service head trauma from in-service injury or personal assaults, and it was many years after that before residuals of head trauma were indicated. To link post service residuals of head trauma to alleged in-service head injuries (which are not actually shown) would be pure speculation. The Board finds the November 2019 VA examination is of great probative value because it was based on a review of the claim file, included an in-person examination, included the results of objective medical testing, and took into account the Veteran’s description of his symptoms and his underlying medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The Board acknowledges the Veteran’s contentions of head injuries in service. However, the Veteran’s assertions of such injuries are questionable at best. As noted above the Veteran’s ex-wife and brother have stated how the Veteran is prone to lying and how the events did not happen. Considering the lack of objective evidence showing the contended injuries in service and the Veteran’s propensity to digress form the truth, the Board finds his allegations not credible. While the July 2020 private examiner’s report reflects that the Veteran has TBI due to in-service injuries/assaults, such opinion is ultimately based on the health care provider’s acceptance of the injuries as currently described by the Veteran as true without critically examining the entire record. There simply is no evidence showing that in-service assaults occurred, resulting in any head injury. Moreover, as noted above, the Board has found the Veteran’s contentions not to be credible. Thus, those opinions linking TBI to alleged in-service injuries are of no probative value. Entitlement to service connection for an acquired psychiatric disorder As to the claim of service connection for an acquired psychiatric disorder, the Board is aware of the diagnoses of record, to include major depression and PTSD. Most recently, upon VA examination in 2019 and private report in July 2020, the diagnosis was PTSD due to in-service personal assaults. Notwithstanding the diagnosis of PTSD, there is no credible evidence to show that the claimed in-service events actually occurred as described. The Veteran and his representative have submitted statements, and the Veteran has testified of in-service abuse that he suffered from his superiors during service. He has alleged that his primary abusers were court martialed, but there is additional evidence suggesting that these facts are not true. This includes a statement by his ex-wife, and a review of the contemporaneous records which does not reflect any such in-service report of abuse or any court martial. Accordingly, the Board finds that the Veteran’s claimed stressors are not independently verified based on this record. Thus, to the extent that a diagnosis of PTSD has been linked to the unverified event involving assault, he does not meet the criteria for the grant of service connection for PTSD. As the Veteran has failed to provide evidence to independently verify the in-service stressors involving assault during service, the opinion of the VA examiner in 2019 is of no probative value. For the same reason, the July 2020 private examiner’s opinion is of no probative value. As to any other psychiatric disorder diagnosed, to include bipolar disorder, anxiety disorder, mood disorder, and major depression, it is clear that no chronic psychiatric diagnosis was diagnosed during service or until many years thereafter. Additionally, these disabilities were first reported many years after discharge, and there is no actual competent evidence linking such to service. Final Considerations as to Both Service Connection Claims The main evidence supporting the claims for service connection for residuals of TBI and an acquired psychiatric disorder is the Veteran’s own lay assertions. Here, the Veteran is competent to describe the TBI and psychiatric manifestations that he experienced in service. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). Here his lay assertions regarding the onset of his current TBI residuals and psychiatric disorder(s) are not credible. There is no corroborative evidence of in-service torture or abuse of the Veteran, to include locking him up in solitary confinement and beating him repeatedly. The Board notes that the Veteran was found totally disabled, for SSA purposes, as a result of his psychiatric disorders. Although VA is required to consider the SSA’s findings, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Adjudication of VA and SSA claims is based on different laws and regulations. Thus, SSA’s determination has little probative value in this matter, and is not sufficient, in this case, to overcome the other evidence as summarized above. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in these claims because the preponderance of the evidence is against the Veteran’s claim. See Gilbert, supra; 38 U.S.C. § 5107 (2012). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. Ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). When there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates that criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). A Rating in Excess of 10 Percent for Low Back Strain with Sciatica Service connection for low back strain with sciatica as secondary to the service-connected right knee was granted upon rating decision in August 2012. A 10 percent rating was granted pursuant to DC 5237. DC 5237 directs that the disability be rated under the General Rating Formula. Under the General Rating Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71, DCs 5235-5243, Note (2). The 10 percent rating was based primarily upon clinical findings made upon VA examination in July 2012. At that time, the diagnoses old compression fracture and low back strain. The date of onset was during active service. Upon ROM testing, forward flexion ended at 80 degrees with painful motion. Extension ended at 15 degrees with painful motion. Right and left lateral flexion ended at 20 degrees with painful motion. Right and left lateral rotation ended at 15 degrees with painful motion. The results were the same after repetitive use testing. Functional loss included less movement than normal and pain on movement. There was no tenderness or guarding. There was mild intermittent pain down both lower extremities but no other radiculopathy symptoms. Intervertebral disc syndrome (IVDS) was noted but with no incapacitating episodes over the past 12 months. -rays documented arthritis in the spine and vertebral fractures. The examiner noted that the Veteran’s gait included a limp favoring the right leg. This was due to right knee injury and brace. VA records reflect that the Veteran’s complaints of low back pain continued in 2013. Additional VA examination was conducted in February 2014. Following review of the record and an in-person examination, lumbosacral strain with sciatic pain was diagnosed. The Veteran reported low back and left leg pain that started in the back and traveled laterally towards the left knee but never crossed the knee. It felt sore, but there was no loss of strength in the legs from the back. There were no incapacitating episodes, and he denied loss of stability. He was limited, however, by knee pain. ROM testing showed forward flexion that ended at 75 degrees with pain at 70 degrees. Extension was to 20 degrees with painful motion. Right and left latera flexion ended at 20 degrees with painful motion. Right and left lateral rotation was to 30 degrees or better without pain. There was no additional limitation of ROM of the thoracolumbar spine after repetitive use testing. Functional impairment included less movement than normal and pain on movement. The Veteran experienced localized tenderness or pain to palpation for joints and/or soft tissue. There were no muscle spasms. There were no signs of radiculopathy. The examiner noted that IVDS was not demonstrated. As noted by VA in a July 2018 remand, the Veteran testified as to worsening of symptoms. It was also noted that the February 2014 examination did not meet the requirements set forth in Correia v. McDonald, 28 Vet. App. 158 (2016), which provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2019) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with ROM measurements of the opposite undamaged joint. Thus, additional examination was necessary. The requested VA back examination was conducted in December 2019. The examiner reviewed the claims file and conducted an in-person examination. Functional impairments included that the Veteran had difficulty bending over. ROM testing was to 30 degrees on forward flexion and to 5 degrees upon extension, and right and left lateral flexion. Right and left lateral rotation was to 30 degrees. The examiner noted that the Veteran’s performance was inconsistent and suggested self-limitation. There was no convincing evidence of pain on the examination. There was no additional loss of ROM after repetitive use testing. The examiner further noted that the examination was medically inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no guarding, spasm, or muscle atrophy. There were no radicular symptoms. IVDS was not demonstrated. In the “remarks” section, the examiner noted that there was no evidence of pain on passive ROM or on non-weight bearing. The examination showed significant symptom amplification and limitation. The complaints of pain were out of proportion to the exam and objective findings. The examiner could not confirm that there was any current pain and function appeared normal. As ROM of the lumbar spine was inconsistent throughout the exam, the measurements were unreliable. Analysis Based on the foregoing evidence of record, the Board finds that an initial disability rating in excess of 10 percent is not warranted for the Veteran’s low back strain throughout the period on appeal. The Board concludes that there is no competent and credible medical or lay evidence demonstrating that the Veteran experienced more than slight limitation of motion of the thoracolumbar spine during the course of the appeal. The Board finds it significant that at the most recent VA examination, the Veteran’s statements about the severity of his spine disability were inconsistent and are therefore not credible. See Curry v. Brown, 7 Vet. App. at 68 (1994); see also Caluza v. Brown, 7 Vet. App. at 510-11 (1995). Therefore, the Board affords more probative value to the medical evidence as recorded by medical personnel in the record, or lack thereof. See id. Accordingly, a disability rating in excess of 10 percent based on the pertinent criteria is not warranted, because there is no probative evidence of more than mild limitation of motion. See 38 C.F.R. § 4.71a, DC 5237 (2019). The Board has considered the holding in Correia, supra, as it applies to the case at hand and finds no basis for remanding for a new examination for compliance. Although the 2019 examination report did not meet all Correia requirements the Board finds that this is inconsequential under the facts of this case. To remand for additional ROM testing knowing that the Veteran was uncooperative at the last examination, would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board is also aware of the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017), which held that examiners must offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran’s lay statements. Id. at 35-36. Given that the Veteran has been found not to be credible and has exaggerated symptoms to appear more impaired than he is, the Board finds that to remand for compliance with Sharp would serve no useful purpose, as any estimated additional limitation of motion would be based on the Veteran’s noncredible statements. See Sabonis, 6 Vet. App. at 430; see also Black, 5 Vet. App. at 180 (finding that an opinion that is based on history furnished by the Veteran that is unsupported by clinical evidence is not probative). A Rating in Excess of 10 Percent for Postoperative Right Knee Chondromalacia and A Compensable Rating for Right Knee Varus and Valgus Laxity Service connection for a right knee disorder (right patella chondromalacia) was granted upon April 1988 rating decision. A noncompensable rating was assigned. In a May 1991 rating decision, the 0 percent rating was increased to 10 percent which was confirmed in June 1991 and July 1992 rating decisions. Following right knee surgery, resulting in a temporary total (TTR) rating in 1995, and a brief period when an increased rating of 30 percent was awarded, the 10 percent rating was reinstated from January 1996. It was in a rating decision of December 2009 that the 10 percent rating for right knee chondromalacia was increased to 30 percent, effective July 27, 2009. Also, at that time, a separate compensable rating of 10 percent was granted for right knee varus and valgus laxity, also effective from July 29, 2009. The July 29, 2009, date was when VA examination was performed which provided for these favorable determinations. In September 2011, the Veteran filed claims for increased ratings for his right knee disorders. When examined for VA in December 2011, the Veteran reported knee symptoms to include weakness, swelling, giving way, lac, of endurance, fatigability, and pain. He did not experience stiffness, heat, redness, lacking, deformity, tenderness, drainage, effusion, subluxation, and dislocation. Examination showed a leg length discrepancy. Specifically, leg length from the anterior superior iliac spine to the medial malleolus was 87 cm on the right and 90 cm on the left. The Veteran wore a knee brace. Muscle strength in the knee was 5/5. Right knee flexion was to 130 degrees with objective painful motion. Extension was to 0 degrees without painful motion. There was no evidence or history recurrent patellar subluxation or dislocation. Additional VA examination was conducted in December 2012. The diagnoses included right knee status post-surgical repair tibial plateau fracture and status post injury/surgical chondromalacia. ROM testing showed flexion to 130 degrees with painful motion. Extension was to 0 degrees without painful motion. There was no additional loss of ROM after repetitive use testing. Joint stability tests were normal. In an August 2012 rating decision, it was proposed that the 30 percent rating in effect for right knee chondromalacia with degenerative changes be reduced to 10 percent. It was also proposed that the 10 percent rating in effect for separated rated right knee varus and valgus laxity be reduced to 0 percent. The Veteran postoperative right knee chondromalacia with degenerative changes is rated pursuant to DCs 5010-5261. The separate rating for right knee varus and valgus laxity is rated pursuant to DC 5257. The Board must consider the possibility of a higher initial evaluation under all potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis is rated on the basis of limitation of motion for the specific joint involved. Under 38 C.F.R. § 4.71a, DC 5257, other impairment of the knee due to recurrent subluxation or lateral instability results in a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or instability. A maximum 30 percent rating is warranted for severe subluxation or instability. Under 38 C.F.R. § 4.71a, DC 5258, [d]islocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, is rated as 20 percent disabling; the 20 percent evaluation is the maximum evaluation provide for under this diagnostic code. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is assigned when extension of the leg is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5262, a malunion of the tibia and fibula of either lower extremity warrants a 20 percent evaluation if there is a marked knee or ankle disability. The VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. See VAOPGCPREC 23-97. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal extension and flexion of the knee is from 0 to 140 degrees. The Veteran testified as to increased right knee symptoms in April 2013. Upon VA examination in May 2013, ROM testing showed right knee flexion to 115 degrees with painful motion beginning at 110 degrees. Extension was to 0 degrees with painful motion. There was no additional loss of ROM following repetitive use testing. Functional impairment was limited by less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing. Instability testing was normal, but there was slight evidence or history of recurrent patellar subluxation/dislocation. The examiner noted that the Veteran’s right knee condition was worsening and was moderate in severity. No varus or valgus laxity was seen on this exam. Additional VA examination of the right knee was conducted in February 2014. The Veteran reported chronic knee pain which increased yearly. He had no swelling but more symptomatic pain on standing and lifting and squatting. He denied locking but had limited motion due to pain. ROM testing of the right knee showed flexion to 115 degrees with pain at 100 degrees. Extension was to 0 degrees without painful motion. There was no additional limitation of motion after repetitive use testing. Contributing factors to functional impairment included less movement than normal and pain on movement. Stability testing was normal. As noted by VA in a July 2018 remand, the Veteran testified as to worsening of symptoms. It was also noted that the February 2014 examination did not meet the requirements set forth in Correia, supra. Thus, additional examination was necessary. The right knee VA examination requested by VA in the 2018 remand was conducted in December 2019. The examiner reviewed the claims file and conducted an in-person examination. Currently, he experienced throbbing, swelling, and stiffness in the knee. ROM was from 0 degrees of extension to 30 degrees of flexion. The examiner noted that these findings were not consistent, and there appeared to amplification and self-limitation on exam. While there was evidence of osteoarthritis, pain behaviors were out of proportion to the objective findings and clinical observation. No pain was actually seen on examination. Joint stability testing showed medial instability (1+(0-5 millimeters)) and lateral instability (1+(0—5 millimeters)). The examiner commented, however, that considering the review of the record and the current exam, there was no justification for the continued diagnosis of valgus and varus laxity. In the “remarks” section of the report, the examiner noted that there was no evidence of pain on passive ROM of the right knee or upon non-weight bearing. Further ROM was not explained by the diagnoses and was inconsistent throughout the exam. Thus, ROM measurements were unreliable. Also, strength testing was unreliable as the overall estimate was that there was normal strength throughout the right lower extremity. Analysis The Board finds that a rating in excess of 10 percent for the Veteran’s right knee chondromalacia with degenerative changes is not warranted. In this regard, the Veteran’s right knee is rated under DCs 5260. For an increased rating of 20 percent, flexion must be limited to 30 degrees. Convincing evidence of such limitation is not currently of record, nor has such limitation been demonstrated throughout the appeal period. As previously noted, the most recent examination results in 2019 were deemed unreliable by the examiner. In addition, the Veteran’s currently assigned right knee rating accounts for his symptoms of pain, limitation of motion, and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5003; DeLuca, 8 Vet. App. at 202. A higher rating for his right knee under DC 5260 or 5261 is not warranted as the examinations of record do not show that the he has experienced right knee ROM less than zero to 110 degrees. As for the separate rating in effect for right knee laxity, it is noted that recent examinations as summarized above, did not find this condition on evaluation during the appeal period. In this regard, where a rating is assigned under the provisions for other knee impairment under DC 5257, a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98. In this case, the examinations of record are negative to show this condition. Thus, a compensable rating is not warranted pursuant to DC 5257. While the Veteran reported using knee braces and instances of his right knee giving way, there is no medical evidence indicating that this was the result of instability as opposed to weakness, fatigability, or other symptoms already compensated by his assigned rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5271; DeLuca, 8 Vet. App. at 202. In addition, the Board also considered whether the Veteran is entitled to a separate rating under DCs 5258 and 5259 for dislocated or removed cartilage. However, the evidence of record shows that he has not been treated for or diagnosed with a semilunar cartilage condition. 38 C.F.R. § 4.71a, DCs 5258, 5259. Therefore, the Board finds the preponderance of the evidence shows that the Veteran’s knee disabilities are manifested by pain, limitation of motion, and weakness. However, ratings in excess of the currently assigned 10 percent rating for right knee chondromalacia with degenerative changes and the 0 percent rating for right knee laxity is not warranted. Thus, the benefit-of-the-doubt doctrine is not further applicable and higher or additional separate ratings are not warranted for the Veteran’s knee disabilities. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). Moreover, as discussed above when evaluating the service-connected low back disorder, although the 2019 examination report did not meet all Correia requirements the Board finds that this is inconsequential under the facts of this case. To remand for additional ROM testing knowing that the Veteran was uncooperative at the last examination, would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Also, see, Sharp, supra. Given that the Veteran has been found not to be credible and has exaggerated symptoms to appear more impaired than he is, the Board finds that to remand for compliance with Sharp would serve no useful purpose, as any estimated additional limitation of motion would be based on the Veteran’s noncredible statements. See Sabonis, supra. Entitlement to a TDIU TDIU A total rating may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and enough additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a) (2019). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2019); see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Background and Analysis The Veteran’s service-connected disabilities include degenerative joint disease (DJD) of the left knee rated as 10 percent disabling from July 2009; residuals of stress fracture of the right talus, rated as 0 percent disabling from January 1996, and 10 percent disabling from August 2009; low back strain with sciatic pain associated with postoperative chondromalacia, right knee, with degenerative changes, rated as 10 percent disabling from September 2011; post-operative chondromalacia, right knee, with degenerative changes, rated as 10 percent from January 1996, 30 percent from July 2009, and 10 percent from June 2014; shortening of the right leg, rated as 0 percent disabling; right knee surgical scar, rated as 0 percent disabling; and varus and valgus laxity of the right knee, rated as 10 percent from July 2009 and 0 percent disabling from June 2014. The combined ratings have been 10 percent from January 1996; 50 percent from July 2009; 50 percent from August 2009; 60 percent from September 2011; and 40 percent from June 2014. If the above percentage thresholds are not met, the Veteran’s claim may still be referred to the Director, Compensation Service for consideration of an extraschedular rating, when the evidence of record shows that Veteran is “unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.” 38 C.F.R. § 4.16(b) (2019). The Board does not currently have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating). It may, however, determine that a particular case warrants referral to the Director of Compensation for extraschedular consideration under 38 C.F.R. § 3.321(b) (2019) and 38 C.F.R. § 4.16(b) (2019). As reflected above, the evidence of record, lay and medical, does not demonstrate that the service-connected disabilities of record alone render the Veteran unemployable. The Board notes and acknowledges the limitations of the Veteran’s other diagnosed conditions, primarily his acquired psychiatric disorders. Specifically, it is noted that while the SSA found in 2015 that the Veteran was granted benefits from September 2008 forward, this was due to nonservice-connected anxiety disorders (primary diagnosis) and for affective/mood disorders (secondary diagnosis). It is reiterated that his psychiatric problems are not pertinent to the Veteran’s claim for a TDIU. In sum, the evidence collectively does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities. Thus, the Board finds that the Veteran has not satisfied the requirements for extraschedular referral under 38 C.F.R. § 4.16(b) (2019). See also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). As the Veteran does not meet the schedular requirement for a TDIU and as the Board finds that referral for extraschedular consideration is not warranted, the claim for a TDIU must be denied. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeals. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.