Citation Nr: 20042008 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 14-26 416 DATE: June 19, 2020 ORDER Entitlement to a disability rating in excess of 30 percent for service-connected right knee disability status post partial knee replacement is denied. Entitlement to a separate 10 percent rating for instability of the right knee is granted. Entitlement to a separate 20 percent rating for right knee recurrent medial meniscus tear, status post meniscectomy, is granted. Entitlement to a temporary total rating for convalescence from May 24, 2017 to June 30, 2017 for partial right knee replacement is granted. Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) with panic disorder and major depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. Entitlement to non-service-connected disability pension benefits is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability is not productive of functional impairment or limitation consistent with limitation of extension greater than 30 degrees limitation and/or flexion to 45 degrees or less, lateral instability, recurrent subluxation, impairment of the tibia and fibula, or genu recurvatum. 2. The Veteran’s right knee disability is manifest by subjective reports of giving way and “pops,” but is not productive of objective evidence of ligamentous laxity or recurrent subluxation. 3. The Veteran was diagnosed to have a recurrent tear of the medial meniscus and underwent multiple arthroscopic meniscectomies but remained symptomatic with frequent episodes of “locking,” pain and effusion in the joint. 4. On May 24, 2017, the Veteran underwent a partial right knee replacement with subsequent in-home physical therapy over the next month. 5. The severity, frequency, and duration of the Veteran’s psychiatric symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 6. The Veteran’s right knee and psychiatric disabilities do not prevent him from being able to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for right knee disability, status post partial knee replacement, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 2. The criteria for a separate rating of 10 percent, but no higher, for instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. The criteria for a separate rating of 20 percent for right knee recurrent meniscal tear, status post meniscectomy, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259. 4. The criteria for a temporary total rating for convalescence status post partial right knee replacement were met from May 24, 2017 to June 30, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.30. 5. The criteria for a disability rating in excess of 50 percent for PTSD with panic disorder and major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 6. The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. 7. The criteria for eligibility for non-service-connected disability pension benefits are not met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 4.17. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the Air National Guard of Oklahoma and served on an initial period of active duty for training from October 2005 January 2006. The Veteran served on a period of active military service from January 2008 to June 2008 when he was called to active duty in support of Operation Enduring Freedom during which time he was deployed to Kuwait from January to May 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions issued in August 2013 and April 2014. The Board remanded the Veteran’s appeal in April 2018 for additional development. The Board finds that the requested development was completed as limited by the Veteran’s failure to respond for information necessary to obtain certain evidence requested by the Board. However, substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran’s claims without prejudice to him. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to a higher initial disability rating for the Veteran’s service-connected right knee disability Service connection was granted effective August 27, 2013 for status post ACL repair and meniscus tear of the right knee and rated as 30 percent disabling under Diagnostic Code 5261 for limitation of extension of the knee to 20 to 29 degrees. See March 2014 rating decision. The Veteran disagreed with the initial 30 percent disability rating assigned contending that his right knee should be rated as 100 percent disabled because he is unable to work due to it. See August 2013 and April 2014 notices of disagreement. Initially, the Board notes that the RO’s characterization of the Veteran’s right knee disability is not consistent with the medical evidence as it does not show the Veteran underwent an ACL repair of the right knee, only that he reported that he did to his treating physicians. The medical records show that, in July 2012, he began reporting that he underwent an ACL repair at VA in 2010 after he sustained an injury to his knee while riding a jet ski. However, the VA treatment records show that he was diagnosed to have a right knee meniscus tear as shown on magnetic resonance imaging (MRI) as a result of that injury and, in October 2010, he underwent arthroscopic surgery and had a partial medial meniscectomy for a medial meniscal under surface tear and anterior horn tear. See VA treatment records from June to October of 2010. His medical records also show he sustained additional injuries to the right knee in February 2011 and June 2012 resulting in a recurrent medical meniscus tear (as shown on MRI in July 2012) and underwent additional surgeries (arthroscopy with medial meniscectomy) at a private hospital in August 2012 and at VA in September 2012. He underwent a fourth surgery in January 2013 done by a private physician for a medial meniscus tear and chondral injury to the tibial condyle. In May 2014, the Veteran had a fifth surgery on his right knee (arthroscopy with partial medial meniscectomy, chondroplasty of the patella and debridement of fat pad) for a recurrent tear of the posterior horn and medial meniscus, grade II to III chondromalacia of the patella and fat pad hypertrophy. Despite all these surgeries, the Veteran continued to complain of pain and locking in his knee due to medial meniscus deficiency. In May 2017, he underwent a partial right knee replacement performed by a private physician (although authorized and paid for by VA through VA’s Choice program). Given the current status of his right knee disability, the Board has recharacterized this disability as “right knee meniscus tear status post partial knee replacement.” Regarding VA’s duty to assist, the Board remarks that VA tried to obtain all the Veteran’s relevant treatment records relating to his right knee. In its April 2018 remand, the Board asked for additional records to be obtained. The Veteran’s Social Security Administration and VA treatment records were obtained. However, the Veteran failed to respond to VA’s requests for such records. Therefore, the claims file only contains his private treatment records through June 2017. The Board acknowledges that the private treatment records that have not been obtained may contain evidence favorable to the Veteran’s claim, but VA was unable to obtain such evidence because of the Veteran’s failure to respond to VA’s requests for information. The Veteran was asked twice for these records in letters sent in July 2018 and May 2019. Despite such letters, the Veteran neither responded by providing VA with releases for it to obtain these records or by providing those records himself. VA is only obligated to make reasonable efforts to obtain evidence necessary to substantiate the claim. 38 C.F.R. § 3.159(c). The claimant is obligated to cooperate with VA’s reasonable efforts to obtain relevant records and authorize the release of existing records. 38 C.F.R. § 3.159(c)(1)(i) and (ii). Hence, the Board finds that VA has met its duty to assist and may adjudicate the Veteran’s claim without prejudice to him. The Veteran’s right knee disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for limitation of extension due to the Veteran’s right knee disability. The evidence shows the Veteran’s right knee has not lacked more than 20 degrees of extension at any time during the appeal period. Moreover, the Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to less movement than normal, weakened movement, pain on movement, disturbance of locomotion and interference with sitting, standing and/or weight-bearing noted on March 2014 and August 2019 VA examinations. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experiences sharp pain lasting three to four hours 2 to 3 times a month caused by activities such as climbing stairs or ladders, walking too long (greater than 20 minutes), prolonged standing (greater than 5 to 10 minutes), pivoting on the knee, and bending the knee (“it pops, and then I fall over and it hurts extremely”) would not result in range of motion of the knee more nearly approximating extension limited to 30 degrees. On repetitive testing on both the March 2014 and August 2019 examinations, the Veteran had no further limitation of extension of the right knee. In fact, at the August 2019 examination, the Veteran had no measurable limitation of extension at all. The Veteran’s treatment records show he generally did not have limitation of extension to 20 degrees but either had full extension or only minimal limitation to no more than 10 degrees. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Diagnostic Code 5256 evaluates ankylosis of the knee. The evidence does not establish that the Veteran has ankylosis of the right knee. The Board acknowledges that the Veteran complains of locking and there is one treatment note from October 2013 in which he was treated for a “locked knee.” However, there is no indication that this was a permanent condition or that his right knee disability is mainly manifested by such condition. Rather, the evidence shows he generally can move his knee. Therefore, the Board does not find it appropriate to evaluate the Veteran’s right knee disability as ankylosis as his disability picture is not consistent with that rating criteria. Diagnostic Code 5257 evaluates other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Board finds that the preponderance of the evidence is in favor of granting a rating of 10 percent for instability of the right knee. The Board has carefully considered the Veteran’s reports of the knee “giving way” and that the knee “pops” or “pops out” causing him to fall as seen in the medical evidence. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the symptoms of instability and/or subluxation have varied and do not suggest the presence of symptoms more nearly approximating moderate severity. There is no objective medical evidence of laxity of the ligaments in the knee or that there has been recurrent subluxation or dislocation of the knee. Rather, the evidence shows only subjective complaints from the Veteran that his knee gives way when it “pops.” Furthermore, the Board does not find the Veteran’s report of having sustained an injury to the anterior cruciate ligament (ACL) in 2010 and undergoing surgical repair credible as the VA treatment records do not support such a history. Rather, his VA treatment records show he sustained an injury to his medial meniscus and had arthroscopy with meniscectomy in October 2010. His subsequent VA and private treatment records show he continued to reinjure his meniscus thereafter. Moreover, the available MRI and operation reports all show the Veteran’s ligaments in his knee have been intact and do not contain any indication of any problems with them. Therefore, the Board finds that, without objective evidence of laxity of the ligaments, the Veteran’s subjective reports show a disability picture consistent with no more than slight laxity of the right knee. Hence, the Board finds that a separate 10 percent rating, but no higher, is warranted under Diagnostic Code 5257 for the Veteran’s right knee disability. Diagnostic Codes 5258 and 5259 evaluate disabilities involving the meniscus cartilage of the knee. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking, pain”, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The medical evidence shows the Veteran has had recurrent tears of the medial meniscus and anterior horn and has undergone arthroscopic surgery with partial medial meniscectomy multiple times to remove the tears to his meniscus cartilage. Yet, despite having multiple meniscectomies, he has continued to be symptomatic with complaints of pain, catching, locking and effusion in the right knee joint. Hence, the Board finds that a separate 20 percent disability rating is warranted under Diagnostic Code 5258 for the Veteran’s right knee recurrent meniscus tears status post medial meniscectomies. In awarding separate ratings under Diagnostic Codes 5257 and 5258, the Board finds that there is no impermissible pyramiding with the rating assigned under Diagnostic Code 5261 as that rating is assigned based on range of motion. Although the Veteran’s pain may have been considered in determining whether a higher rating should be assigned under Diagnostic Code 5261 based on functional loss, a higher rating was not assigned and, therefore, considering the Veteran’s pain in assigning a rating under Diagnostic Code 5258 is not pyramiding. Diagnostic Code 5260 evaluates limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The medical evidence shows the Veteran’s right knee has had no less than flexion of 90 degrees during the appeal period. Moreover, the Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to less movement than normal, weakened movement, pain on movement, disturbance of locomotion and interference with sitting, standing and/or weight-bearing noted on March 2014 and August 2019 VA examinations. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experiences sharp pain lasting three to four hours 2 to 3 times a month caused by activities such as climbing stairs or ladders, walking too long (greater than 20 minutes), prolonged standing (greater than 5 to 10 minutes), pivoting on the knee, and bending the knee (“it pops, and then I fall over and it hurts extremely”) would not result in range of motion of the knee more nearly approximating flexion limited to 45 degrees. As for Diagnostic Codes 5262 and 5263, as the evidence does not show either impairment of the tibia and fibula or genu recurvatum, the Board finds that evaluation under either of those Diagnostic Codes is not warranted. In addition to the above individual ratings, the Board has considered whether the Veteran is entitled to any temporary total rating based upon convalescence following surgery for his service-connected right knee disability. The evidence shows that, during the appeal period starting in August 2013, the Veteran had arthroscopy on his right knee in May 23, 2014 and a partial knee replacement on May 24, 2017. Pertaining to temporary total evaluations based upon convalescence, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted effective the date of hospital admission or outpatient treatment and continuing for a period of one to three months from the first day of the month thereafter. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); (3) Immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. The Board finds that a temporary total rating is not warranted for the May 2014 surgery because the medical records show the Veteran was released to work on June 9, 2014. Therefore, he was only temporarily disabled from his surgery for a total of 17 days, and only 9 days in June 2014. However, after considering all the evidence, the Board resolves reasonable doubt that the Veteran required at least one month of convalescence after his partial right knee replacement in May 2017. Although the actual operative report is not in the record, the available treatment records show the Veteran underwent a partial knee replacement of the right knee on May 24, 2017. The Veteran received in-home physical therapy for four weeks after his surgery from May 29th to June 22nd. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for right knee meniscus tear status post partial knee replacement, but is in favor of granting a separate 10 percent disability rating for instability of the right knee and a separate 20 percent disability rating for right knee recurrent meniscus tears, status post medial meniscectomies. The Board also finds that a temporary total evaluated for convalescence due to surgery is warranted from May 24, 2017 to June 30, 2017. In making such a decision, the Board has applied the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a disability rating in excess of 50 percent for service-connected PTSD with panic disorder and major depressive disorder The Veteran asserts that his PTSD, panic attacks and depression should be evaluated as 100 percent disabling because he is unable to work due to his psychiatric symptoms. See August 2013 notice of disagreement. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Veteran’s service-connected PTSD with panic disorder and major depressive disorder (hereafter “psychiatric disability”) has been evaluated as 50 percent disabling. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. Unfortunately, the Board concludes that they did not, but that the Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. VA examinations from January 2013, June 2013 and August 2019 show that the Veteran’s psychiatric disability has been manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, chronic sleep impairment), a 50 percent rating (panic attacks four times per week, panic attacks more than once a week, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships), and a 70 percent rating (difficulty in adapting to stressful circumstances). The Veteran also had some PTSD symptoms that are not listed with a specific rating. Although the VA treatment records note the Veteran continued to experience PTSD symptoms, the VA examiners from January and June of 2013 reported that the Veteran’s PTSD was in remission and that his psychiatric diagnosis was better described as either major depressive disorder or panic disorder. The January 2013 VA examiner did not note the Veteran had any PTSD symptoms, while the June 2013 VA examiner noted the Veteran had PTSD symptoms of recurrent distressing dreams, intense psychological distress at exposure to cues relating to his traumatic event, and difficulty with sleep but not enough symptoms to warrant a diagnosis of PTSD. However, the Veteran’s treatment records show he reported having nightmares through April 2013 and at the June 2013 VA examination, but not after that until October 2014. In October 2014, he reported an increase in nightmares after an incident when his house was broken into the previous month. Thereafter, there was either no report of nightmares or he specifically denied having them. Mostly the treatment records discuss the Veteran’s issues with his panic attacks and his sleep problems. In contrast, the August 2019 VA examination shows the Veteran was diagnosed to have PTSD and the examiner checked that the Veteran has the following PTSD symptoms: recurrent intrusive distressing memories; dissociative reactions (e.g., flashbacks); marked physiological reactions to cues relating to the traumatic event; avoidance of distressing memories, thoughts or feelings about the traumatic event; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; hyper-vigilance; exaggerated startle response; and sleep disturbance. The examiner noted their duration had been in excess of one month. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. While the Veteran experienced one symptom contemplated by a 70 percent rating (difficulty in adapting to stressful circumstances), the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. Rather, as noted above, the Veteran’s other remaining symptoms were contemplated by or more consistent with either the 30 percent or 50 percent rating criteria. Furthermore, although the Veteran’s VA psychiatric treatment records note he continued to experience PTSD symptoms, they do not provide enough detail to fully evaluate such symptoms. The records only show he had occasional nightmares through June 2013 but after that they are silent for nightmares except for a single note from October 2014 showing a brief worsening in his PTSD symptoms after a break-in at the Veteran’s home. This October 2014 note indicates the Veteran had an increase in his anxiety, nightmares, hypervigilance, sleep difficulties, and panic attacks. However, most of the time, the Veteran’s psychiatric treatment notes are silent for symptoms of PTSD; instead mostly discussing his panic attacks and his sleep problems as well as the problems he had dealing with his knee pain and issue related to obtaining treatment for it. Moreover, although the Veteran has reported significant sleep problems, the evidence shows he has also reported that his sleep has been significantly affected by medical problems such as right knee pain and obstructive sleep apnea (see e.g., April 22, 2013 Psychiatry note in which Veteran reported experiencing fatigue and tiredness during the day related to right knee pain that wakes him up during the night; July 2, 2013 pain management note in which Veteran report he was not sleeping well due to pain; November 2016 VA Orthopedic Surgery note in which Veteran reported his pain was worse at night and he was unable to sleep well; November 15, 2016 Psychiatry note in which Veteran reported a history of obstructive sleep apnea and that sleep issues are related to repeatedly breaking his nose; December 1, 2016 Psychiatry note in which Veteran reported having trouble sleeping due to his sleep apnea and not taking Ambien and MS Contin for knee pain; August 6, 2019 VA examination for knee at which Veteran reported that it is hard for him to get three hours of sleep when the ice and pain medication wears off and the pain wakes him up). Moreover, the occupational and social impairment caused by the Veteran’s psychiatric symptoms is not shown to contemplate the criteria for a higher disability rating. The January 2013 VA examiners opined that the Veteran’s psychiatric symptoms caused occupational and social impairment with mild or transient symptoms that decease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication, which is consistent with only a 10 percent rating. The June 2013 VA examiner opined that the Veteran’s psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is consistent with a 30 percent rating. The August 2019 VA examiner opined that the Veteran’s psychiatric symptoms cause occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating. Finally, the Board notes that, effective August 4, 2014, VA implemented rules replacing references in the regulations to the DSM-IV with the DSM-5. The DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The Veteran’s appeal was certified to the Board in 2017. Consequently, the DSM-5 is for application to this appeal. According to the DSM-5, clinicians do not typically assess Global Assessment of Functioning (GAF) scores as they did with the DSM-IV. The DSM-5 introduction states that it was recommended that the GAF be dropped from the DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. Given that the DSM-5 has abandoned the GAF scale and VA has formally adopted the DSM-5, it is not appropriate to utilize the GAF scores to assign a psychiatric rating in cases where the DSM-5 is applicable. See Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). Thus, although the evidence contains GAF scores because the Veteran’s claim was filed prior to August 2014, the Board will not discuss those scores as to do so is not appropriate since the DSM-5 is applicable to the Veteran’s appeal. 3. Entitlement to a TDIU and non-service-connected disability pension benefits The Veteran contends that he has been unable to work since 2010 due to his service-connected right knee and psychiatric disabilities. He does not contend that he has any other significant nonservice-connected disabilities that affect his ability to work and the medical evidence does not demonstrate any. The Board will consider the Veteran’s claims of TDIU and non-service-connected disability pension benefits together since the inquiry is the same for both issues, i.e., whether the Veteran has been able to secure and follow a substantially gainful occupation due to his right knee and psychiatric disabilities. The Board acknowledges that the Veteran’s service-connected right knee and psychiatric disabilities cause significant occupational impairment as reflected in the disability ratings assigned but does not find that they prevent him from being able to secure or follow a substantially gainful occupation. Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. The Veteran has been service-connected for his right knee disability evaluated as 30 percent disabling (with additional ratings granted herein) and his psychiatric disability evaluated as 50 percent with a combined disability rating of 70 percent since August 27, 2013. Thus, he meets the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) since August 27, 2013. However, the evidence must still show that the Veteran is unable to obtain or pursue a substantially gainful occupation due to a service-connected disability or his service-connected disabilities combined. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran’s education, employment history and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). As for non-service-connected disability pension benefits, for VA pension purposes, all veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled. 38 C.F.R. § 3.17. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). For the purpose of pension, the permanence of the percentage requirements of §4.16 is a requisite. 38 C.F.R. § 4.17. Generally, 38 C.F.R. § 4.16(a), provides that total disability ratings may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of disability provided that, if there is only one such disability, this disability is ratable at 60 percent or more; and that, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. 38 C.F.R. § 4.17. Prior employment or unemployment status is immaterial if, in the judgment of the rating board, the veteran’s disabilities render him or her unemployable. Id. Marginal employment (for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration) will not be considered incompatible with a determination of unemployability, if the restriction as to securing or retaining better employment, is due to disability. Moreover, claims of all veterans who fail to meet the percentage standards but who meet the basic entitlement criteria and are unemployable, will be referred by the rating board to the Veterans Service Center Manager or the Pension Management Center Manager under 38 C.F.R. § 3.321(b)(2). The Veteran joined the National Guard in December 2004. Prior to that, he worked in warehouses for many years. While with the National Guard, his military occupational specialty was Aircrew Life Support Journeyman. The Veteran’s reports as to his occupational history as shown in the record are somewhat inconsistent as to whether and how much he worked after he joined the National Guard. He has inconsistently reported that he chose to stop working full-time when he joined the National Guard (e.g., August 6, 2019 PTSD VA examination), that he worked occasional assignments for the National Guard in additional to his regular periods of training (e.g., January 29, 2009 VA examination), and that he worked full-time as a civilian employee for the National Guard (e.g., November 29, 2010 Orthopedic Surgery Note). The Veteran was deployed and served on active duty from January to June of 2008. Thereafter he was discharged from the National Guard. In addition, the Veteran has reported that he has not worked since either his release from active duty in 2008 or since 2010. However, there are inconsistent reports in his medical records showing that he worked off and on doing some part-time jobs through 2012 with family and friends (see VA treatment notes from July 2010, January 2012. In addition, in July 2012, he obtained a job working for Federal Express as a delivery man. Unfortunately, the evidence shows that he sustained an on-the-job injury to his right knee only a few weeks after he started that job. He reported to VA that he has not worked after this injury, but his medical records show his report that he was working in a clerical position for some time after his injury that he has not reported to VA. His treatment records also show his report in October 2012 that he was working some for a friend’s gutter company while he was waiting for a job to open at Federal Express’s warehouse. The medical evidence after his on-the-job injury to his right knee shows that he continued to reinjure the knee and underwent multiple surgeries to repair recurrent tears of the meniscus in the knee between 2012 and 2014. He was considered temporarily totally disabled for periods of time while recovering from these surgeries. However, his physicians would release him to return to work with restrictions limiting how much he could lift, push, pull, stand, walk, crawl, kneel, squat and/or climb. On VA examination in June 2013, the examiner acknowledged that the Veteran was considered temporarily totally disabled but that he was less than six months out from his last surgery and that, with proper treatment and care, his knee was expected to improve within one year from his surgery to the extent that he could engage in substantially gainful employment. Unfortunately, the Veteran reinjured his knee and underwent another surgery in May 2014. However, in November 2014, the Veteran’s physician found he had reached maximum medical improvement by his Workman’s Compensation physician and released him to return to work with the following permanent restrictions due to his right knee disability: no climbing, kneeling, crawling and squatting. Furthermore, a Functional Capacity Evaluation Summary report completed by one of the Veteran’s Workman’s Compensation physicians in June 2013 shows the Veteran was capable of safely performing work up to and including the Light and some Medium physical demand categories with a safe maximum of 35 pounds from floor to shoulder level. The physical demand categories stated were in accordance with the U.S. Department of Labor standards. In addition, in relation to his service-connected right knee disability, the August 2019 VA examiner opined that it is at least as likely as not that the Veteran is able to perform sedentary work with periodic rest breaks, ergonomic assessments and equipment and adjustable workstations. Sedentary work was defined as “exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. Sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.” As for the Veteran’s service-connected psychiatric disability, VA examinations from January 2013 and August 2019 do not demonstrate that the Veteran’s psychiatric disability causes total occupational impairment. The January 2013 VA examiner stated that the Veteran’s mental problems make it only mildly difficult for him to complete and perform the tasks required by an employer and that he has mild difficulty obtaining and maintaining employment. The August 2019 VA examiner opined only that the Veteran’s psychiatric disability would require employment where work assignments could be altered, specifically stating that the Veteran would require work that has occasional or less contact with the public and that contact should be of a superficial nature only. In addition, the Veteran filed twice for Social Security Disability Insurance benefits (SSDI) but was denied both times in Administrative Law Judge (ALJ) decisions issued in September 2013 and November 2016. In the September 2013 decision, the ALJ found that the Veteran retained the residual functional capacity to perform “sedentary work” with additional constraints that he can only occasionally climb ropes, ladders or scaffolds; occasionally operate foot pedals and controls with his lower extremities; understand, remember and carry out simple, routine, repetitive instructions; make only simple work related decisions; deal with only occasional changes in work processes and environment; should be working with things and objects, instead of people, so have no contact with the general public and have only incidental, superficial work-related type contact with co-workers and supervisors, i.e., brief, cursory, succinct communication relevant to the task being performed; and must avoid any fast pace, production pace, assembly line pace type work. The Board notes that the ALJ’s decision defined “sedentary work” as involving “lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” In the November 2016 decision, the ALJ again found the Veteran retained the residual functional capacity to perform “sedentary work” with the following limitations: occasionally climb ramps and stairs; avoid the climbing of ladders, ropes and scaffolds; frequently balance, occasionally kneel, crouch and crawl; and perform simple and some complex tasks with little or no detailed or complex independent planning or goal setting involving no interaction with the general public and having no more than occasional interaction with co-workers. Moreover, both ALJ decisions found that the Veteran’s psychiatric disability caused mild restrictions of activities of daily living, moderate difficulties in maintaining social functioning and moderate difficulties with concentration, persistence and pace. These determinations were based upon lay statements by the Veteran and his mother, as well as opinions of medical examiners, as to the Veteran’s functioning. In support of his claim, the Veteran submitted in August 2017 multiple Social Security Administration (SSA) forms completed by his pain management specialist in July 2016 that he had submitted in support of his second SSDI claim on which this physician provided medical opinions assessing the Veteran’s functioning relating to his right knee disability. The physician completed the following forms: Medical Opinion Re: Absences From Work, Medical Opinion Re: Basic Unskilled Work Requirements, Medical Opinion Re: Sedentary Work Requirements, Medical Opinion Re: Clinical Assessment of Pain, and Physical Residual Functional Capacity Questionnaire. On these forms, this physician sets forth his opinions as to the functional limitations caused by the Veteran’s right knee disability including his opinion that the Veteran cannot be expected to attend any employment on a sustained basis (8 hours a day, 5 days a week, or an equivalent work schedule). Unfortunately, the Board finds that the physician’s responses on the various forms contradict each other and, therefore, finds the opinions expressed therein lack probative value. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). Primarily the Board finds that the physician’s responses on the Medical Opinion Re: Clinical Assessment of Pain are inconsistent with his responses on the other forms providing specific assessments of impairment of the different work activities, both physical and mental. The medical evidence shows the Veteran’s primary complaint relating to his right knee disability is pain. Although he reports other symptoms such as popping and locking, it is usually to state that incidents of such cause an increase in pain. On the Medical Opinion Re: Unskilled Work Requirements, the Veteran’s physician stated that the Veteran’s knee pain limits his daily functions and, on the Physical Residual Functional Capacity Questionnaire, he stated that the Veteran’s symptoms are “fatigue and bilateral knee pain” and characterized the Veteran’s pain as “[right] knee pain increased with walking, standing, bending [and] twisting.” He identified the clinical findings and objective signs as “osteoarthritis of right knee causing chronic pain.” Therefore, clearly pain is a significant factor in the Veteran’s right knee disability and the assessment of the impact his pain has on his functioning would be highly probative in determining the Veteran’s ability to work. In addition, the physician stated on the Medical Opinion Re: Basic Unskilled Work Requirements that the Veteran could not understand, remember and carry out simple instructions in a routine work setting and could not maintain concentration and attention for extended periods in a routine work setting. He also stated on the Medical Opinion Re: Sedentary Work Requirements that the Veteran could not sustain activity at a pace and with the attention to ask as would be required in the competitive workforce and he would be likely to have significant difficulty concentrating due to the symptoms caused by his impairments. Moreover, on the Physical Residual Functional Capacity Questionnaire form, the physician stated that the Veteran’s impairments (physical and emotional) are reasonably consistent with the symptoms and functional limitations described in this evaluation. He also stated on this form that the Veteran’s pain is increased by activities of walking, standing bending and twisting and that the Veteran constantly experiences pain or other symptoms severe enough to interfere with attention and concentration needed to perform even simple work tasks during a typical workday. In contrast, the physician stated on the Medical Opinion Re: Clinical Assessment of Pain form that the Veteran has no underlying medical condition consistent with the pain he experiences. He also opined that the Veteran’s pain causes no reduction in basic mental work activities such as concentration or attention, memory, social functioning, sustain ordinary work stress, etc. He also opined that the Veteran’s pain is present to such an extent as to cause limitations or restrictions more than a minimal effect on the ability to do basic work activity or activities of daily living on a day-to-day basis, but he did not indicate his pain was irretractable and virtually incapacitating. Moreover, to the extent that physical work would increase the Veteran’s level of pain, this physician opined the Veteran would experience an increase of pain but not to such an extent as to prevent adequate functioning in such tasks. These statements are inconsistent with the statements on the other forms indicating the affect the Veteran’s right knee pain has on both his mental and physical work activities. In addition, in February 2014, the Veteran also submitted a Functional Capacity Evaluation Summary Report dated the same month setting forth the limitations the Veteran has due to his right knee disability. However, the Board notes that this medical report was provided by one of the Veteran’s VA mental health treating providers who is a psychologist. Therefore, the provider has not been shown to have the experience, education, and training necessary to make a competent opinion with regard to the Veteran’s right knee, a condition outside the scope of this individual’s experience, education and training. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Therefore, the opinion is of little probative weight. Sklar v. Brown, 5 Vet. App. 140 (1993). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Having considered the evidence of record as to the impact the Veteran’s functional limitations have on his ability to work, the Board finds that the more probative and persuasive evidence is the VA examiners’ medical opinions and the SSA records demonstrating that the Veteran has retained residual functional capacity to perform sedentary work (as shown to be defined above) with some limitations such as restrictions on walking, standing, crawling, kneeling, bending and twisting due to his right knee disability and restrictions on working with the public and interactions with co-workers due to his psychiatric disability. Although the evidence shows the Veteran has significant limitations resulting from his service-connected right knee and psychiatric disabilities, the Veteran’s current disability ratings assigned for those disabilities are indicative of the severity of them and that they would result in significant impairment on his earning capacity. The ultimate question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. The evidence essentially shows the Veteran took himself off the full-time employment market in December 2004 when he joined the National Guard, which was years before he had either of his disabilities. It is unclear whether he ever attempted to return to gainful employment after he was discharged from active duty in June 2008, except for his employment with Federal Express in July 2012, which ended when he injured his right knee after only three weeks on the job. Despite the injury and subsequent surgeries, he was released to return to work albeit with restrictions but never did. Moreover, the Veteran took a job at Federal Express as a delivery driver even though his chief symptom relating to his psychiatric disability has been panic attacks primarily triggered by driving casting doubt that his psychiatric symptoms were as significant as he reports. Consequently, the preponderance of the evidence does not establish that the Veteran has been unable or prevented from securing and following a substantially gainful occupation as a result of those disabilities. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Kreitlow 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.