Citation Nr: 20046963 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 08-34 693 DATE: July 14, 2020 ORDER Prior to March 18, 2011, entitlement to an evaluation in excess of 10 percent for right knee limitation of motion is denied. Effective March 18, 2011, entitlement to an evaluation greater than 20 percent for right knee limitation of motion is denied. Prior to September 5, 2012, entitlement to an evaluation greater than 10 percent for right knee instability is denied. Effective September 5, 2012, entitlement to an evaluation greater than 20 percent for right knee instability is denied. Entitlement to service connection for a kidney disorder, including as secondary to the service-connected right knee disability, is granted. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to March 18, 2011, the Veteran’s degenerative joint disease of the right knee was manifested by pain and flexion greater than 60 degrees; there was no finding that the disability was manifested by semilunar dislocated cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 2. From March 18, 2011, the Veteran’s degenerative joint disease of the right knee was manifested by pain and flexion greater than 60 degrees; the evidence also showed that the Veteran had frequent episodes of pain and effusion of the right knee. 3. Prior to September 5, 2012, the preponderance of the evidence shows that the Veteran’s right knee was not manifested by at least moderate recurrent subluxation or lateral instability. 4. From September 5, 2012 onward, the preponderance of the evidence shows that the Veteran’s right knee was not manifested by severe recurrent subluxation or lateral instability. 5. The diagnosed kidney disorder has been shown to be etiologically related to the Veteran’s service-connected right knee disability. 6. The Veteran’s service-connected disabilities preclude him from obtaining substantial and gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right knee degenerative joint disease prior to March 18, 2011 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5258-5260. 2. The criteria for a disability rating in excess of 20 percent for right knee degenerative joint disease from March 18, 2011 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5258-5260. 3. The criteria for entitlement to an increased rating in excess of 10 percent for right knee instability prior to September 5, 2012 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for entitlement to an increased rating in excess of 20 percent for right knee instability from September 5, 2012 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 5. The criteria for entitlement to service connection for kidney disorder have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to March 1981. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ). In May 2017, the Board remanded the claims for additional development. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily 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. The 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; 38 C.F.R. § 4.1. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pyramiding, that is the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes (DCs), is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Regulation 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). 1. Right knee The Veteran was granted service connection for his degenerative joint disease for his right knee in an April 2004 rating decision and assigned an initial 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260 (traumatic arthritis; limitation of leg flexion). Thereafter, in December 2006 the Veteran filed a claim for an increase in his right knee disability and in a January 2013 rating the RO increased the disability rating for degenerative joint disease to 20 percent, effective March 18, 2011 pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5258-5260 (dislocated semilunar cartilage; limitation of leg flexion) based on a May 2012 VA examination finding of a right knee meniscectomy which was manifested by frequent episodes of joint pain and effusion. The Board notes that the Veteran underwent meniscal debridements in 2001 and 2003. See, e.g., the June 2019 VA examination report. March 18, 2011 was chosen as the effective date of the increase to 20 percent based on receipt of a statement from the Veteran. See the January 2013 rating decision. The Veteran’s degenerative joint disease of the right knee is rated 10 percent disabling prior to March 18, 2011 and 20 percent thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5258-5260. The Board notes that the Veteran’s right knee degenerative joint disease is primarily manifested by knee pain and limitation of motion as well as impairment of the meniscus. As such, the Board finds that Diagnostic Codes 5260 and 5261 which pertain to knee flexion and extension, are for application as well as application of Diagnostic Code 5258. The Veteran was granted service connection for chondromalacia in a November 2002 rating decision and assigned an initial noncompensable rating. Thereafter, the Veteran’s rating was raised to 10 percent in an April 2004 rating decision, effective February 4, 2004 and recharacterized as right knee chondromalacia with instability. In a subsequent January 2008 rating decision the Veteran’s 10 percent rating was continued. The RO increased his rating to 20 percent, effective September 5, 2012. The applicable rating codes are as follows. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of leg extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Under Diagnostic Code 5258, a 20 percent is warranted for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion in to the joint. The Board also notes that under Diagnostic Code 5259, a 10 percent rating is warranted for cartilage, semilunar, removal of, symptomatic. VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 (September 17, 2004). The Veteran’s right knee chondromalacia with instability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee, including subluxation or lateral instability. Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In October 2007 the Veteran was afforded a VA examination for his right knee disability. At that examination the Veteran reported increased bilateral knee pain associated with walking, standing or weight bearing for more than 15 to 20 minutes. Upon physical examination he was noted as walking slowly and deliberately with an antalgic gait favoring the right leg. He was wearing a right knee laterally stayed knee brace. The Veteran’s range of motion of his right knee extension was to 0 degrees both pre and post repetitive motion testing and his flexion was to 110 degrees. The Veteran complained of pain on the extremes of knee flexion bilaterally and there was no apparent weakness, fatigability or loss of coordination. The Veteran was afforded another examination in March 2008 for his knees, wherein he reported flare ups in his right knee three to four times a week lasting all day. He stated that his flare ups were severe in nature. He utilized a right knee brace and a cane to assist him with weightbearing but no other assistive devices. He reported that he was not employed so there was no effect on his occupation. His activities of daily living were affected in that all weightbearing activities were particularly painful for his knees. Upon examination, range of motion of both his knees was 0 to 110 degrees with crepitus laterally on the right. Imaging studies showed degenerative joint disease of both knees. The Veteran had a small effusion on the right knee, with no instability appreciated in either knee and a negative Lachman’s bilaterally. The only additional limitation following repetitive use was increased crepitus and pain. There were no flare ups and there was no effect of incoordination, fatigue, weakness or lack of endurance on his joint function. In December 2008 the Veteran was afforded another VA examination for his knees, at which time he reported that his knees would give way on him and he continued to have right knee pain which he found to be 6/10 in severity at rest and with activity it goes up to a 10/10. It was aggravated by standing for 3 minutes, walking a half a block and he was not able to go up and down stairs. He did not do any lifting or driving. He wore a brace on his right knee since 1979, used a cane since 2003, and used a wheelchair for six months prior to the examination. The Veteran’s right knee showed fluid around the knee with medial and lateral tenderness. The range of motion was from 0 to 100 degrees with pain that ended at 110 degrees. There was no additional noted decrease in range of motion with repetitive use over three repetitions as it related to pain, weakness, fatigability or incoordination. There was no decrease in range of motion with flare ups, as this was not described. There was no instability of either knee. April 2009 imaging of the bilateral knees showed views of both patella with no significant progression of severe degenerative arthritic changes of either knee with marked narrowing of both medial compartments. There was no erosion or marginal hypertrophic change and there was severe degenerative arthritis of both knees with no progression since previous examination. In June 2010 the Veteran was examined again for his knees. At that time the Veteran reported an increase in severity of his right knee disability. He used a cane to offload the weight on his right knee and used braces on both knees. He noted that he had fallen on occasion as a result of his right knee feeling clumsy and that his right knee was chronically swollen without evidence of redness, tenderness or drainage. There was no noted locking of the knees, no dislocation, but the right knee felt unstable at times. The Veteran had full weight bearing without evidence of swelling or palpable tenderness of the knee but he had tenderness in the medial aspect of both the superior aspects of the tibia. He was able to flex the knee to 130 degrees with it extended fully at 0 degrees, but there was some limitation due to his weight. There was no ligament laxity and the medial and lateral ligaments were normal. The Lachman’s test was normal with no movement and the anterior and posterior drawer signs were negative bilaterally. With repetitive motion there was no additional loss of range of motion, pain, fatigability, weakness, lack of endurance or loss of coordination. Imaging of the bilateral knees showed severe bilateral tricompartmental degenerative joint disease slightly more prominent on the right side, a slight progression from April 2009. On September 5, 2012 the Veteran was afforded another VA examination. At that examination the Veteran reported pain at rest and with weight bearing, swelling and instability with occasional falling. The Veteran was not on any current medication and his walking was limited to one block due to right knee pain. The Veteran did not report flare ups of the knee. The Veteran’s right knee flexion ended at 110 degrees and painful motion began at 90 degrees. Extension ended at 0 degrees with no evidence of painful motion. The Veteran was able to perform repetitive use testing with no additional limitation of range of motion. The Veteran had reported functional loss and functional impairment of the knee specifically less movement than normal, incoordination, pain on movement, swelling, instability of station, disturbance of locomotion and interference with sitting, standing and weight bearing. The Veteran reported tenderness and pain to palpation for soft tissues of the right knee. Flexion and extension muscle strength testing was normal. Joint stability testing was normal. The Veteran reported frequent episodes of joint pain and joint effusion in the right knee. The Veteran reported using assistive devices of a brace on a constant basis and a cane on an occasional basis. The examiner noted imaging studies of the knee were performed and the results showed degenerative and traumatic arthritis. The examiner also noted that the Veteran’s knee condition was shown to impact his ability to work, specifically limiting his work to sedentary work only. In April 2013 the Veteran was provided another VA examination for his right knee. At that time the Veteran reported that he had intolerable bilateral knee pain induced by prolonged weight bearing, ascending and descending stairs and ladders. He reported that since his last examination in September 2012 his knee condition had been treated conservatively, and symptomatically as an outpatient only without physical therapy. He denied any invasive treatments or hospitalization. The Veteran stated he experienced daily severe bilateral mechanical knee pain with frequent bilateral knee effusion and instability. The Veteran did not report flare ups of the knee. Range of motion testing revealed flexion to 120 degrees with evidence of painful motion at 90 degrees and extension to zero degrees with pain at zero degrees. After repetitive use testing, the Veteran did not have additional loss of range of motion. The Veteran reported functional loss and functional impairment of the knees specifically with less movement than normal, pain on movement, swelling and deformity. The Veteran also had tenderness or pain to palpation for soft tissue of both knees. Muscle strength and joint instability testing was normal. There was no evidence of recurrent patellar subluxation or dislocation. The Veteran had a meniscus condition, specifically a tear of the meniscus and a meniscotomy in his medical history in 2000 and 2004. The examiner noted the Veteran had continued chronic pain as a result of the meniscectomy. The Veteran reported using a brace and a cane for an assistive device. The Veteran reported functional impact of the right knee, specifically stating he experiences intolerable mechanical bilateral knee pain with prolonged weight bearing. The examiner noted that the Veteran does not appear to be unemployable due to his service-connected knee disability, as he is capable of sedentary work. He used a brace on a regular basis and cane on occasional basis. In June 27, 2019 the Veteran had another VA examination. At that examination the Veteran reported that throughout the years he has favored his right knee more and degenerative joint disease of his right knee has worsened over the years. He stated he right now has a baseline of 4/10 severity of pain and that it flares randomly and post activity. He noted that flares come and go with most any use and can last hours to days. He is taking hydrocodone for the pain and massages his knee. The Veteran reported he is unable to stand, sit or walk for very long. He cannot squat, kneel or do stairs well. The Veteran showed range of motion measurements with flexion to 110 degrees and extension from 110 to 0 degrees. Both were noted as exhibiting pain. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. The Veteran’s right side showed less movement than normal, swelling, instability of station, disturbance of locomotion, interference with sitting, interference with standing and decreased range of motion with an inability to sit/stand or walk very long, with some instability of stance. Joint stability testing showed slight recurrent subluxation in the right and left knee with a history of lateral instability and a history of recurrent effusion. The examiner noted that the knees swelled with some flares. Slight anterior instability was shown at 1+, with normal posterior instability and slight medical instability at 1+ and slight lateral instability at 1+. The examiner also noted a meniscal tear of the right side. The Veteran used assistive devices of a brace, cane and walker on a regular basis. The examiner noted that the Veteran’s pain, weakness, fatigability and incoordination were able to significantly limit functional ability with repeated use over a period of time. Specifically the Veteran experienced pain, fatigue and weakness. With regard to flare ups, the examiner noted that the Veteran’s examination was medically consistent with his statements describing functional loss during flare ups. The Veteran reported he was able to describe his loss of range of motion when he is having flare ups, stating his flexion is to 60 and his extension is from 60 degrees to zero degrees. Muscle strength testing showed some reduction in muscle strength with no ankylosis of the right knee. The Veteran noted he used assistive devices of a brace, cane and walker on a regular basis. The Veteran noted he was unable to walk, stand, sit, kneel or squat for very long periods. The examiner noted that the Veteran would need sedentary work to accommodate his knees. Based on the foregoing, the Board finds that prior to March 18, 2011, a disability rating more than 10 percent is not warranted for the Veteran’s degenerative joint disease of the right knee. Specifically, flexion was not shown to be limited to 30 degrees or less and extension was not shown to be limited to 15 degrees or less. In fact, limitation of motion has not been shown to be limited to a compensable degree (45 degrees flexion) or (10 degrees extension) or even at a noncompensable degree (60 degrees flexion) or (5 degrees extension). Therefore, a higher rating under diagnostic codes 5260 or 5261 is not warranted. He is rated as 10 percent disabling due to painful motion. 38 C.F.R. §§ 4.59, 4.71a, Codes 5260-5261. Moreover, with regard to consideration of Diagnostic Codes 5258 and 5259, although the Board acknowledges the Veteran’s prior meniscectomies and notes a finding of small effusion during the March 2008 VA examination, the evidence of record is otherwise absent symptoms specifically pertaining to the meniscus prior to the September 2012 VA examination when the Veteran reported frequent episodes of joint pain and joint effusion in the right knee. Notably, there was no report of locking or dislocation documented during the June 2010 VA examination. As such, the Board finds that an increased rating is not warranted with consideration of Diagnostic Code 5258 and Diagnostic Code 5259. He is properly rated at 10 percent due to painful motion. In light of the above, the Board finds that the criteria for a rating in excess of 10 percent for a right knee disability based on limitation of motion and meniscal surgery prior to March 18, 2011 have not been met. Therefore, the Veteran’s claim for entitlement to a rating in excess of 10 percent for his right knee disability prior to March 18, 2011 must be denied. From March 18, 2011, the evidence shows that a rating in excess of 20 percent is not warranted for the Veteran’s degenerative joint disease of the right knee. Pertinently, 20 percent is the highest available rating under Diagnostic Code 5258. With regard to separate ratings under Diagnostic Codes 5260 and 5261, the Board notes that the Veteran’s flexion and extension do not show the criteria necessary for a compensable rating. Specifically, the Veteran’s flexion at his May 2012, April 2013 examinations were not shown to be limited to 45 degrees or less and extension was not shown to be limited to 10 degrees or less. Painful motion is contemplated under Diagnostic Code 5258, and as the Veteran’s limitation of flexion and extension have not been shown to be limited to a compensable degree even after considering flare-ups and repetitive use, a separate compensable rating under Diagnostic Codes 5260 and 5261 is not warranted. Therefore, the Veteran’s claim for entitlement to a rating in excess of 20 percent for his right knee disability from March 18, 2011 must be denied. The Board finds that for period prior to September 5, 2012, right knee instability more nearly approximated no more than a slight degree of disability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran has reported experiencing instability of his knee throughout the course of the appeal period; however, the only joint stability testing of record was at the VA examinations and the March 2008 VA examination revealed no instability and a negative Lachman’s test, and the June 2010 VA examination instability testing likewise revealed normal findings. Thus a rating in excess of 10 percent prior to September 5, 2012 is not warranted as instability was not shown as more than slight, and there was no finding of recurrent subluxation. For the period from September 5, 2012, the Veteran’s symptoms more nearly approximated a moderate instability. Specifically, at the Veteran’s September 2012 VA examination the Veteran’s right knee showed medial lateral instability testing that was abnormal, indicating moderate severity under Diagnostic Code 5257. A higher evaluation of 30 percent is not warranted as there was no showing of severe subluxation or lateral instability of the knee. Also, the April 2013 VA examination revealed no finding of recurrent patellar subluxation or dislocation. Finally, while the Board notes the June 2019 VA examination documented positive findings with regard to joint stability testing, such results were characterized as slight. Therefore, while the Veteran may experience a feeling that his knee may give way or is unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence and degree of these conditions. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no greater than slight instability or laxity prior to September 5, 2012 and no greater than moderate instability or laxity thereafter. Hence, the evidence is against an increased rating for the Veteran’s chondromalacia with instability at any time during the appeal period. The Board further finds that additional separate ratings are not warranted under additional diagnostic codes. The Board notes that there is no evidence of ankylosis of the right knee. Thus, Diagnostic Code 5256 does not apply in this case. Also, although tenderness in the medial aspect of both the superior aspects of the tibia was noted in a June 2010 VA examination, there is no documentation of any malunion of the tibia or fibula. Therefore, the Board finds that Diagnostic Code 5262 pertaining to impairment of the tibia and fibula is not for application. Lastly, there was no finding of genu recurvatum, so Diagnostic Code 5263 is not for application. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board further notes that service connection on a secondary basis may be established for a disability which is proximately due to or the result of service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of nonservice-connected condition. 38 C.F.R. § 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Kidney disorder as secondary to right knee disability The Veteran seeks entitlement to service connection for a kidney disorder. Specifically, the Veteran asserts that his kidney disorder is related to his service, to include his right knee disability. The Veteran has been diagnosed with renal cyst, and has had a bilateral nephrectomy as the cyst was of malignant nature. See June 2019 VA examination. At the outset, the Board notes that the Veteran did not have any in service symptoms or treatment for a kidney disorder; therefore, there is no indication that direct service connection is warranted for the Veteran’s kidney disorder. With regard to secondary service connection, the Board notes that the Veteran was afforded a VA examination in November 2005. The examination was for the Veteran’s knee problems, but the examiner made note that the Veteran had a history of heavily taking aspirin for knee pain and also had been taking Motrin since 1978. At that time the examiner found that the Veteran’s increase in his kidney level creatinine was more than likely secondary to his hypertension which was not well controlled. The Veteran’s hypertension is not service connected. In October 2007 the Veteran was afforded a VA examination for his kidney disorder. At that examination the Veteran reported being first diagnosed with renal insufficiency in 2003, and noted that he has been followed by a renal clinic at the Dallas VA Medical Center. The Veteran reported occasional leaking of urine, urine frequency and urine hesitancy (his stream starts and stops). He has some decreased stream with no dysuria. The October 2007 examiner also concluded that the Veteran’s urinary symptoms were less likely due to the effect of medication taken for his renal insufficiency than they are likely due to the effects of medication taken for his hypertension. The examiner opined that the medication taken for the Veteran’s knees, the NSAIDs, contributed to the development of renal insufficiency, but that he was unable to say how much they contributed without resorting to speculation. The Veteran reported at a June 2019 VA examination that he was first diagnosed with renal insufficiency in 2003, and he was told to stop taking NSAIDs, which he took for joint pain, but he continued to have a decline in his kidney function. He began dialysis in 2008. He has had in the last five years a renal cyst, which appeared possibly malignant so he underwent a bilateral nephrectomy in May 2019. At his examination the Veteran reported that he continues to receive dialysis 3 days every week and this is an exhausting process. The June 2019 examiner addressed the December 2004 creatinine level of 2.4, at which point the Veteran discontinued all his medications and only took hydrocodone for his knee. He now has elevated renal functions, not improving after cessation of NSAIDs. The examiner also addressed the November 2005 opinion, in which the examiner concluded that the Veteran’s kidney disorder was more likely due to his medication for hypertension. The examiner also noted Veteran was on dialysis due to his kidney failure for 10-12 years and later diagnosed with renal cysts. After review of his records and examination of the Veteran, the June 2019 examiner concluded that the Veteran’s kidney disorder was more likely than not aggravated by his medication taken for his service-connected right knee conditions. The examiner cited UpToDate, which stated that fifty to 80 percent of patients are affected after 10 years on dialysis. These observations of UpToDate suggest that the duration of chronic kidney disease is a major risk factor for renal cyst development. One nephrologist stated that there was a decline of renal function even after stopping NSAID use and therefore they felt the decline of kidney function was more due to the Veteran’s hypertension. However, the examiner stated that it is not clear in literature what the many factors are adding to kidney disease. Taking NSAIDs for presumably 30-40 years for knee pain would likely add to the decline in renal function, however it is not known how much it would add to the decline. Therefore, for the reasons above, the examiner found that the Veteran’s renal decline is at least as likely as not aggravated beyond its normal progression by the Veteran’s service connected right knee chondromalacia with knee instability and chronic NSAID use. As noted above, the June 2019 medical opinion is based upon a current medical finding that medication used to treat the Veteran’s service-connected right knee disability had caused a side effect of elevated renal levels. Based on that finding, the examiner concluded that the noted side effect proximately aggravated the Veteran’s kidney disorder, including contributing to this diagnosed renal cyst. The Board notes that November 2005 and October 2007 examiners’ opinions stating that the Veteran’s kidney disorder was more likely due to the medication for his hypertension. In any event, the medical evidence is at least in equipoise. There is probative medical evidence of record supporting a finding that the diagnosed kidney disorder is secondary to the Veteran’s service-connected right knee disabilities. The claim is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). TDIU The Veteran has contended that he is unable to maintain employment due to his knee and kidney disabilities. See December 2006 claim for benefits. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disabilities to bring the combination 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). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. At the outset, the Board notes that the Veteran is in receipt of service connection for anxiety rated at 30 percent, degenerative joint disease of the right knee rated at 20 percent (March 18, 2011), chondromalacia rated at 20 percent (September 5, 2012), left knee instability rated at 10 percent, left knee chondromalacia rated at 10 percent, surgical scar associated with degenerative joint disease rated as noncompensable and pseudofolliculitis rated as noncompensable. Although he is now service connected for a kidney disability, it has not yet been assigned a disability rating. As of the October 2019 rating decision, his disabilities met the rating criteria on April 18, 2013 (70 percent). Additionally, the evidence demonstrates that during this timeframe, the Veteran was unable to obtain or retain substantially gainful employment due to the combined effects of his service-connected disabilities. On the October 2012VA Form 21-8940 form, Veteran’s Application for Increased Compensation based on Unemployability, the Veteran noted that he finished high school and finished three years of college. He specified that he finished his Auto CAD operator training. He noted he last worked as a machine operator from 1997 to 2003 and that he lost his job because of his disability, specifically his knees. Throughout his VA examinations for his knees and kidney disabilities, various VA examiners have stated that the Veteran’s knees would cause him to only be capable of sedentary employment. At his most recent June 2019 kidney examination the examiner noted that the Veteran’s dialysis he incurs three times a week for four hours at a time are exhausting and that it would be very difficult to work a regular job schedule around such treatment. (Continued on the next page)   In summary, the preponderance of the evidence establishes that given his occupational history and functional limitations, the Veteran is unable to obtain or retain substantially gainful employment due to the combined effects of his service-connected disabilities. Entitlement to TDIU is therefore warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.