Citation Nr: 21000077 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-32 399 DATE: January 4, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for right knee degenerative joint disease with chondromalacia and suprapatellar spurs is denied. Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease with chondromalacia and suprapatellar spurs is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability is manifested by subjective complaints of pain, stiffness, and swelling with flare-ups; objective findings include flexion, at worst, to 110 degrees and extension, at worst, to five degrees, with the use of a knee brace; however, muscle atrophy, ankylosis, recurrent subluxation, lateral instability, recurrent effusion, or joint instability have not been shown as well as no additional limitation in range of motion due to repetitive motion. 2. The Veteran’s left knee disability is manifested by subjective complaints of pain, stiffness, and swelling with flare-ups; objective findings include flexion, at worst, to 100 degrees and extension, at worst, to three degrees, with the use of a knee brace; however, muscle atrophy, ankylosis, recurrent subluxation, lateral instability, recurrent effusion, or joint instability have not been shown as well as no additional limitation in range of motion due to repetitive motion. 3. The Veteran’s service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his educational background and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for right knee degenerative joint disease with chondromalacia and suprapatellar spurs have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5099-5010 (2019). 2. The criteria for a disability rating in excess of 10 percent for left knee degenerative joint disease with chondromalacia and suprapatellar spurs have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5099-5010 (2019). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to July 1987 This case comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, FL. This issue was previously before the Board in October 2018. The Board remanded the matter to afford the Veteran a VA examination. A VA examination was conducted in January 2020. The Board finds that there has been substantial compliance with the Board’s remand directives, and the Veteran’s claims can be adjudicated on the current record. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, the issues on appeal have been expanded to include entitlement to TDIU. Entitlement to TDIU is “part and parcel” of the determination of the appropriate rating for a disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The record contains evidence not yet considered by the agency of original jurisdiction (AOJ). However, the Veteran has waived consideration of the evidence by the AOJ prior to a decision on the merits. See October 2020 AOJ Waiver. Therefore, the Board may proceed to the merits. See 38 C.F.R. § 20.1305 (c). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s right knee disability is currently categorized as degenerative joint disease with chondromalacia and suprapatellar spurs, rated as 20 percent disabling effective May 2003. The Veteran’s left knee disability is currently categorized as degenerative joint disease with suprapatellar spurs, rated as 10 percent disabling effective May 2010. The Veteran asserts entitlement to disability ratings in excess of 20 percent for his right knee and in excess of 10 percent for his left knee. The Veteran’s right and left knee disabilities are rated under Diagnostic Codes (DCs) 5099-5010. When a particular disability is not listed among the diagnostic codes, a code ending in “99” is used; the first two numbers are selected from the portion of the schedule most approximating a Veteran’s symptoms. 38 C.F.R. § 4.27. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. In this case, DC 5099 refers to an unspecified musculoskeletal disorder and DC 5010 refers to arthritis due to trauma. Under DC 5010, arthritis due to trauma is rated under the criteria applicable for DC 5003, which pertains to degenerative arthritis. 38 C.F.R. § 4.71a. Under DC 5003, arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate codes, an evaluation of 10 percent is applied for X-ray evidence of involvement with 2 or more major joints or 2 or more minor joint groups. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. A 20 percent rating is warranted for X-ray evidence of involvement with 2 or more major joints or 2 or more minor joint groups with occasional incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5003, 5010. A Note to the criteria indicates that the 10 and 20 percent ratings set forth above will not be combined with ratings based on limitation of motion. Therefore, whichever criteria (either X-ray evidence of arthritis or limitation of motion) yields the higher benefit is the criteria that is applied. DC 5260 provides for the evaluation of limitation of flexion of the knee. 38 C.F.R. § 4.71a. A noncompensable rating is warranted when leg flexion is limited to 60 degrees, a 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71. DC 5261 provides for the evaluation of limitation of extension of the knee. A noncompensable rating is warranted when leg extension is limited to 5 degrees, a 10 percent rating is warranted when it is limited to 10 degrees, a 20 percent rating is warranted when it is limited to 15 degrees, a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a 50 percent rating requires extension limited to 45 degrees. Id. Diagnostic Code 5256 governs ankylosis of the knee and permits a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees, while a 40 percent rating is called for with flexion between 10 and 20 degrees, and a 50 percent rating for flexion between 20 and 45 degrees. Extremely unfavorable ankylosis, with flexion at an angle of 45 degrees or more warrants a maximum 60 percent evaluation. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent evaluation. Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage warrants a 10 percent rating. Under Diagnostic Code 5262, impairment of the tibia and fibula warrants a 10 percent rating where there is malunion of the tibia and fibula with slight ankle or knee disability. A 20 percent rating is warranted where there is malunion of the tibia and fibula with moderate ankle or knee disability. A 30 percent rating is warranted where there is malunion of the tibia and fibula with marked ankle or knee disability. A maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring brace. Diagnostic Code 5263 provides a 10 percent rating where there is evidence of acquired genu recurvatum or traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. The VA General Counsel held that a knee disability may receive separate ratings under diagnostic codes evaluating instability (Code 5257) and those evaluating range of motion (Codes 5003, 5010, 5256, 5260, and 5261). See VAOPGCPREC 23- 97. Additionally, the General Counsel held that separate ratings under Code 5260 (limitation of flexion of a knee) and Code 5261 (limitation of extension of a knee) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The evidence of record consists of VA examinations conducted in April 2011, January 2013, and January 2020 as well as VA treatment records, and private treatment records. A March 2008 VA treatment record shows the Veteran’s complaints of bilateral knee pain. X-rays showed very minimal degenerative changes. There was no evidence of heat, inflammation, joint effusion, or clicking. The Veteran’s knees were stable to varus and valgus stress without aggravation of pain. An April 2008 VA kinesiotherapy consult shows the Veteran had full range of motion in his extremities with good strength for his age and gender. The Veteran completed 20 minutes on a treadmill with no adverse reaction to exercise testing. The Veteran displayed no abnormalities with gait. A May 2008 VA treatment record notes the Veteran’s complaints of bilateral knee pain. The orthopedic physician noted a negative straight leg raise, no joint effusion, and full range of motion to the knees. Palpation of the knees resulted in some discomfort, but it was minimal. A November 2008 VA treatment note shows an orthopedic consultation for a pre-employment evaluation regarding the Veteran’s knee pain. The physician noted the Veteran’s treatment for knee pain in the past and a scheduled left knee arthroplasty in July 2008 that the Veteran cancelled due to an improvement in his symptoms. There was no significant swelling reported with no recurrence of symptoms that are related to possible internal derangement, i.e. locking or recurrence of swelling. On examination, the Veteran ambulated briskly without an antalgic gait. There was no evidence of muscle atrophy, knee weakness, or effusion. The Veteran was able to hop on both legs. The physician reported that the Veteran demonstrated good functional activities with his lower extremities and that he should be able to perform the duties of a housekeeper. The physician cautioned that any patient over 60 years old, including the Veteran, should not do repetitive squatting and should avoid it as much as possible. The Veteran stated that he felt he was able to perform this activity if it was required. The Veteran was afforded a VA examination in April 2011 for his left knee service connection claim. The Veteran reported sharp intermittent left knee pain, worsening with stairs and bending. The Veteran’s left knee presented with stiffness, weakness, incoordination, decreased speed of joint motion, and crepitus. There was no evidence of left knee dislocation or subluxation, locking, effusion, clicking, or instability. The Veteran denied flare ups. Range of motion (ROM) testing revealed right knee flexion from 0 to 110 degrees and normal extension and left knee flexion from 0 to 100 degrees with normal extension. There was evidence of pain with active motion bilaterally. There was no additional limitation after three repetitions of ROM. The VA examiner denied any joint ankylosis. The VA examiner reported that the Veteran’s left knee impacts his occupational activities, decreasing mobility, strength, and concentration. The Veteran was afforded a VA examination in January 2013. The VA examiner noted diagnoses of right knee chondromalacia of patella, suprapatellar spurs and degenerative joint disease, and left knee degenerative joint disease with suprapatellar spurs. The Veteran reported having bilateral knee pain “all the time” and that prolonged standing and sitting makes his knees hurt. The Veteran further reported experiencing a little weakness and numbness but stated that he walks okay and can bend his knees. The Veteran endorsed grinding/clicking/popping sensations but stated that he used to hear it more in the past but not as much currently. The Veteran endorsed experiencing flare ups but did not identify certain triggers other than prolonged walking and sitting and that he would avoid squatting or kneeling. Range of motion (ROM) testing revealed right knee flexion to 120 degrees with no objective evidence of painful motion and extension to five degrees with no objective evidence of painful motion. ROM testing for the left knee revealed flexion to 130 degrees with no objective evidence of painful motion and normal extension with no objective evidence of painful motion. Repetitive use testing resulted in no additional loss of ROM in either the left or right knee but did result in additional functional loss with less movement than normal and deformity bilaterally. Bilaterally, there was evidence of localized tenderness or pain on palpitation. Muscle strength was 5/5 bilaterally. The VA examiner reported no evidence of ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. The Veteran endorsed occasional use of a brace for his right knee. The VA examiner reported that the Veteran’s bilateral knee disabilities impact his ability to work based on the Veteran’s reports of problems with being on his feet constantly, prolonged walking, having to kneel and/or squat. A July 2014 VA treatment record notes the Veteran’s complaint of left knee pain. The Veteran denied falls or injuries. The Veteran’s left knee was not swollen but exhibited tenderness with palpation. An April 2015 VA treatment record notes the Veteran’s complaints of bilateral knee pain. The Veteran stated that his knees click and pop and very rarely locks or catches. A July 2015 VA physical therapy consultation notes the Veteran’s complaints of bilateral knee pain. The Veteran stated that his right knee swells with prolonged standing and walking as well as occasionally gives way but with no falls. Range of motion was from 0 to 110 degrees with muscle strength 5/5 and no edema. An August 2016 VA emergency department note shows the Veteran presented with left knee pain with no falls or injuries. The emergency room physician noted no edema nor decrease in range of motion. The Veteran stated that his left knee pain started one week prior, but it was getting better, currently a 3/10 but could get as bad as 8/10. A February 2017 VA treatment record notes the Veteran’s complaints of left knee pain but that his right knee did not bother him. The Veteran reported pain in his knees worsening with deep bending as well as climbing but denied locking, catching, falls, or other mechanical symptoms. Range of motion (ROM) testing was from 3 to 115 degrees bilaterally. The Veteran was stable to varus and valgus stress, as well as anterior and posterior drawer bilaterally. McMurray’s test was negative. A June 2018 VA treatment record notes the Veteran’s reports of knee swelling, left more than right, and pain, that was reported as manageable. Range of motion was 0 to 120 degrees bilaterally and muscle strength was 5/5. The Veteran was afforded a VA examination in January 2020. The VA examiner noted diagnoses of bilateral degenerative arthritis. The Veteran endorsed experiencing flare ups, occurring at least once a month, resulting in stiff knees in the morning. Range of motion (ROM) testing revealed, bilaterally, normal flexion from 0 to 140 degrees and normal extension from 140 to 0 degrees, with no pain noted on examination, pain with weight bearing, localized tenderness or pain on palpitation of the joint, nor objective evidence of crepitus. Repetitive use testing resulted in no additional loss of function or ROM in either the left or right knee. Pain, weakness, fatiguability, or incoordination did not significantly limit the Veteran’s bilateral knee functional ability with repeated use over time. Muscle strength was 5/5 bilaterally with no evidence of muscle atrophy. The VA examiner reported no evidence of ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. The Veteran endorsed occasional use of brace(s). The VA examiner reported that the Veteran’s bilateral knee disabilities do not impact his ability to perform occupational tasks. Finally, in accordance with Correia, there was no evidence of pain on passive range of motion testing nor when the joint was used in non-weight bearing. The Veteran has submitted an August 2020 private treatment note from his osteopathic doctor. Following a review of the Veteran’s treatment records, the physician reported that, due to knee pain, the Veteran would be unable to stand for 15 minutes without needing to lean on something, unable to walk more than 15 minutes, sit for a total of 30 minutes, and unable to lift or carry more than 15 pounds. The physician further reported that the Veteran would require more than one additional break per day so he can lie down, nap, recline, stretch, etc. The Board must afford this statement little probative value. No objective findings, including range of motion measurements, were included in the report. The statement appears contrary to the numerous examinations in which objective physical findings were recorded at the April 2011, January 2013, and January 2020 VA examinations. Therefore, the Board finds it outweighed by the remaining medical evidence of record. 1. Entitlement to a disability rating in excess of 20 percent for right knee degenerative joint disease with chondromalacia and suprapatellar spurs The Veteran’s right knee is currently assigned a 20 percent disability rating for degenerative joint disease with chondromalacia and suprapatellar spurs. A 20 percent evaluation is assigned when X-ray evidence shows involvement of two or more major joints or two or more minor groups with occasional incapacitating exacerbations. A higher evaluation of 30 percent is not warranted unless the evidence shows flexion limited to 20 degrees, or extension that is limited to 15 degrees, or recurrent severe subluxation or lateral instability. After a comprehensive review of the record, the Board finds that the Veteran has experienced, at worst, flexion of 110 degrees in the right knee throughout the appellate period, and to this extent, a higher disability rating under Diagnostic Code 5260 is denied for the right knee. See April 2011 VA examination; see also July 2015 VA Treatment Record. The Veteran has experienced, at worst, extension limited to five degrees for the right knee and to this extent, a higher disability rating under DC 5261 is denied. See January 2013 VA Examination. In July 2015, the Veteran reported that his right knee occasionally gives way but denied any falls. See July 2015 VA Treatment Record. No VA examiner has found evidence of right knee recurrent subluxation, lateral instability, or recurrent effusion and the Veteran has denied falls. See April 2011, January 2013, January 2020 VA examinations. To whatever extent the Veteran may assert that his right knee is unstable, the Board has considered this statement but finds that the objective medical evidence outweighs the subjective complaints, as the medical evidence was created by trained health care providers objectively performing their professional duties following objective testing. The Board finds that those objective medical findings are more persuasive because of the training and experience of the medical professionals. In light of those medical records, the Board finds that a separate disability rating is not warranted, pursuant to Diagnostic Code 5257. A separate disability rating under DC 5258 is not warranted. The Board notes the Veteran’s complaints of occasional locking. See April 2015 VA Treatment Record. However, this DC requires frequent episodes of “locking,” pain, and effusion into the joint from dislocated cartilage. The April 2011, January 2013, and January 2020 VA examinations reported no joint effusion and do not show frequent episodes of locking of the knee. Moreover, dislocated cartilage is not shown. Thus, the Veteran does not meet the criteria for a separate rating under DC 5258. A rating under Diagnostic Code 5259 is not warranted as there is no evidence of, and the Veteran has not asserted, removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. At no point has the Veteran’s right knee presented with ankylosis. As identified by the ROM results above, the Veteran did not demonstrate immobility of the right knee. See Dorland’s Illustrated Medical Dictionary, 28th edition, p. 86. Ultimately, because the Veteran displayed right knee ROM throughout the claim period, a separate disability rating for ankylosis is not warranted under DC 5256. At no point during the appeal period has the Veteran’s right knee presented with impairment of tibia and fibula. Thus, a separate rating under DC 5262 is not warranted. At no point during the appeal period has the Veteran’s right knee presented with genu recurvatum. Thus, a separate rating under DC 5263 is not warranted. The Board must also consider additional functional loss due to symptoms such as pain, repetitive motion, and flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 44; Correia, 28 Vet. App. at 169-170; Sharp, 29 Vet. App. at 33. The Veteran has provided competent and credible reports regarding limited ability to walk, stand, squat, and kneel due to episodes of increased knee pain from these activities. The Board also acknowledges the Veteran’s reports of grinding, clicking, and popping sensations. See January 2013 VA examination. None of the VA examiners have provided an estimated motion loss for periods of flare-ups from increased activity. Sharp, supra. The Board acknowledges that it cannot be stated with certainty as to the precise limitation of motion experienced during flare-up periods. The Veteran endorsed flare ups in his January 2013 and January 2020 VA examinations. During his January 2013 VA examination, the VA examiner noted no objective evidence pain on examination. The Veteran was able to perform repetitive testing without additional loss of motion and the VA examiner found less movement than normal and deformity following repeated use but noted no weakened movement, excess fatiguability, or incoordination. During his January 2020 VA examination, the VA examiner noted no objective evidence pain on examination. The Veteran was able to perform repetitive testing without additional loss of motion and the VA examiner found that pain, weakness, fatiguability, or incoordination did not significantly limit the Veteran’s functional ability to repeated use. The Board finds that a disability rating in excess of 20 percent for motion loss for the right knee is not warranted. 38 C.F.R. § 4.71a, DC 5260, 5261. The medical and lay statements do not indicate that the flare-ups are so severe as to more nearly approximate a 30 percent disability rating for the Veteran’s right knee. All clinical evaluations indicate that the Veteran has significantly greater movement than the motion loss contemplated for the 30 percent rating criteria for DCs 5260, 5261. Id.; see April 2011, January 2013, and January 2020 VA Examination Reports. For these reasons, a disability rating in excess of 20 percent for the Veteran’s right knee is denied. Id.; 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). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record does not warrant a disability rating in excess of 20 percent for the Veteran’s right knee disability. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran’s belief that his service-connected right knee disability warrants a higher rating. However, the objective clinical findings do not support his assertions. Thus, the preponderance of the evidence is against the Veteran’s claim and the Board finds that the criteria for a disability rating in excess of 20 percent for a right knee disability. 2. Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease with chondromalacia and suprapatellar spurs The Veteran’s left knee is currently assigned a 10 percent disability rating for degenerative joint disease with chondromalacia and suprapatellar spurs. A 10 percent evaluation is assigned for painful or limited motion of a major joint or group of minor joints. A higher evaluation of 20 percent is not warranted unless evidence demonstrates leg flexion which is limited to 30 degrees or leg extension which is limited to 15 degrees, or; there is evidence of moderate subluxation or lateral instability of the knee. The Board finds that the Veteran has experienced, at worst, flexion of 100 degrees in the left knee throughout the appellate period, and to this extent, a higher disability rating under Diagnostic Code 5260 is denied for the left knee. See April 2011 VA Examination. The Veteran has experienced, at worst, extension limited to three degrees for the left knee, and to this extent, a higher disability rating under DC 5261 is denied. See February 2017 VA Treatment Record. No VA examiner has found evidence of left knee recurrent subluxation, lateral instability, or recurrent effusion and the Veteran has denied falls. Thus, the Board finds that a separate disability rating is not warranted, pursuant to Diagnostic Code 5257. A separate disability rating under DC 5258 is not warranted. The Board notes the Veteran’s complaints of occasional locking. See April 2015 VA Treatment Record. However, this DC requires frequent episodes of “locking,” pain, and effusion into the joint from dislocated cartilage. The April 2011, January 2013, and January 2020 VA examinations reported no joint effusion and do not show frequent episodes of locking of the knee. Moreover, dislocated cartilage is not shown. Thus, the Veteran does not meet the criteria for a separate rating under DC 5258. A rating under Diagnostic Code 5259 is not warranted as there is no evidence of, and the Veteran has not asserted, removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. At no point has the Veteran’s left knee presented with ankylosis. As identified by the ROM results above, the Veteran did not demonstrate immobility of the left knee. See Dorland’s Illustrated Medical Dictionary, 28th edition, p. 86. Ultimately, because the Veteran displayed left knee ROM throughout the claim period, a separate disability rating for ankylosis is not warranted under DC 5256. At no point during the appeal period has the Veteran’s left knee presented with impairment of tibia and fibula. Thus, a separate rating under DC 5262 is not warranted. At no point during the appeal period has the Veteran’s left knee presented with genu recurvatum. Thus, a separate rating under DC 5263 is not warranted. The Board must also consider additional functional loss due to symptoms such as pain, repetitive motion, and flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 44; Correia, 28 Vet. App. at 169-170; Sharp, 29 Vet. App. at 33. The Veteran has provided competent and credible reports regarding limited ability to walk, stand, squat, and kneel due to episodes of increased knee pain from these activities. The Board also acknowledges the Veteran’s reports of grinding, clicking, and popping sensations. See January 2013 VA examination. None of the VA examiners have provided an estimated motion loss for periods of flare-ups from increased activity. Sharp, supra. The Board acknowledges that it cannot be stated with certainty as to the precise limitation of motion experienced during flare-up periods. The Veteran endorsed flare ups in his January 2013 and January 2020 VA examinations. During his January 2013 VA examination, the VA examiner noted no objective evidence pain on examination. The Veteran was able to perform repetitive testing without additional loss of motion and the VA examiner found less movement than normal and deformity following repeated use but noted no weakened movement, excess fatiguability, or incoordination. During his January 2020 VA examination, the VA examiner noted no objective evidence pain on examination. The Veteran was able to perform repetitive testing without additional loss of motion and the VA examiner found that pain, weakness, fatiguability, or incoordination does not significantly limit the Veteran’s functional ability to repeated use. The Board finds that a disability rating in excess of 10 percent for motion loss for the left knee is not warranted. 38 C.F.R. § 4.71a, DC 5260, 5261. The medical and lay statements do not indicate that the flare-ups are so severe as to more nearly approximate a 20 percent disability rating for the Veteran’s left knee. All clinical evaluations indicate that the Veteran has significantly greater movement than the motion loss contemplated for the 20 percent rating criteria for DCs 5260, 5261. Id.; see April 2011, January 2013, and January 2020 VA Examination Reports. For these reasons, a disability rating in excess of 10 percent for the Veteran’s left knee is denied. Id.; 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). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record does not warrant a disability rating in excess of 10 percent for the Veteran’s left knee disability. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran’s belief that his service-connected left knee disability warrants a higher rating. However, the objective clinical findings do not support his assertions. Thus, the preponderance of the evidence is against the Veteran’s claim and the Board finds that the criteria for a disability rating in excess of 10 percent for a left knee disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of meeting the percentage threshold for TDIU eligibility, disabilities of one or both lower extremities, including the bilateral factor; disabilities resulting from a common etiology or a single accident; or disabilities affecting a single body system are considered as one disability. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Factors to be considered are the veteran’s education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran’s advancing age. 38 C.F.R. § 3.341 (a); see also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the current appeal, service connection has been granted for obstructive sleep apnea, rated as 50 percent disabling; unspecified depressive disorder, rated as 50 percent disabling; right knee degenerative joint disease, rated as 20 percent disabling; left knee degenerative joint disease, rated as 10 percent disabling. The Veteran’s combined rating is 80 percent as of July 2014. As such, during this appeal, the Veteran meets the criteria for consideration for entitlement to TDIU on a schedular basis under 38 C.F.R. § 4.16 (a). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321 (b), 3.340, 3.341, 4.16(b), 4.19. The Board concludes on review of the record, a TDIU is not warranted. By all indication, the Veteran has the capacity for substantially gainful employment, notwithstanding the impact of service-connected disabilities. The evidence of record indicates that the Veteran has a high school education with one year of college. According to the Veteran’s VA Form 21-8940, the Veteran last worked full-time in December 2014 as a housekeeper at the Salem VA Medical Center. See November 2019 VA Form 21-8940. The Board notes that the Veteran reported that he left his last employment because of his disability, however his employer reported that he voluntarily retired to obtain retirement benefits. See February 2020 VA Form 21-4192, Request for Employment Information. The Veteran was afforded a VA examination in April 2011 for his left knee disability. The Veteran reported that he worked in housekeeping at Salem VAMC and during the last 12-month period he had lost no time from work. The VA examiner reported that the Veteran’s right left knee caused significant effects on the Veteran’s usual occupation, causing decreased concentration, mobility, and strength as well as pain. The Veteran was afforded a VA examination in January 2013 for his bilateral knee disabilities. The Veteran reported constant bilateral knee pain that increases with prolonged standing and sitting. The VA examiner reported that the Veteran’s bilateral knee disabilities impact his ability to work, reiterating the Veteran’s statements that he has problems being on his feet constantly, prolonged walking, kneeling, and squatting. The Veteran has submitted June 2016 private psychologist opinion, presented in connection with his service connection claim for depressive disorder, granted in October 2019. The reviewing psychologist reported that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder. The psychologist further reported that the Veteran’s bilateral knee disabilities aggravate the Veteran’s depressive disorder. The accompanying Residual Functional Capacity Evaluation notes that the Veteran would miss three or more days a week due to his mental problems and would need to leave early three or more days per month due to his mental problems. Furthermore, the Veteran would be unable to stay focused for more than three days per month and he would respond inappropriately more than once per month, responding angrily without becoming violent. The Veteran has submitted an August 2016 sleep apnea disability benefits questionnaire (DBQ), presented in connection with his service connection claim for sleep apnea, granted in October 2019. The physician noted that the Veteran’s sleep apnea impacts his ability to work, causing severe fatigue, resulting in diminished focus, concentration, and memory recall. The physician stated that the Veteran’s significant fatigue with diminished focus and concentration prevents the Veteran from maintaining work in any employment base. A December 2016 VA treatment record notes the Veteran’s report that he gets depressed at times, but he denied staying consistently depressed. The Veteran further reported that he was currently working on a seasonal basis at the United States Postal Service (USPS). The Veteran was afforded a VA examination in June 2017 for his unspecified depressive disorder. The Veteran reported working at the Salem VAMC in housekeeping from 2009 to 2014, when he retired, and that he was currently working part-time as a security guard at an art museum. The VA examiner noted that the identified stressors for the Veteran’s psychiatric disability were medical issues, pain, financial problems, and age. The VA examiner reported that the Veteran’s psychiatric disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran was afforded a VA examination in January 2020 for his unspecified depressive disorder. The Veteran reported being retired since 2014 and that he was content being retired. The Veteran further stated that would sometimes have panic attacks at work but denied that this caused any difficulty in performance or with supervisors. The Veteran reported working part-time after retirement, working security at a museum, which he had to resign due to scheduling conflicts, and seasonally at USPS. According to the Veteran, he received a negative evaluation in 2018, stating he could not keep up with the job speed, and he was not hired back the next year. The VA examiner opined that this issue was less likely related to the Veteran’s service-connected depressive disorder, with the Veteran reporting that his functioning was actually good or satisfactory. The VA examiner reported that the Veteran’s psychiatric disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The VA examiner concluded that the Veteran’s psychiatric disability appears relatively mild and he is functioning fairly well in a number of areas in his life. Thus, the Veteran’s psychiatric disability likely has minimal impact on his ability to function in an occupational environment. The Veteran was afforded a VA examination in January 2020 for his sleep apnea. The VA examiner reported that the Veteran’s sleep apnea does not impact his ability to work. The Veteran was afforded a VA examination in January 2020 for his bilateral knee disabilities. The VA examiner reported that the Veteran’s bilateral knee disabilities do not impact the Veteran’s ability to perform occupational tasks. The Veteran has submitted a September 2020 private medical opinion. The private osteopathic doctor reviewed the Veteran’s claims file and interviewed the Veteran. The Board notes that there was no physical examination conducted. After consulting with the Veteran, the private physician reported that, due to his knee pain, the Veteran would be unable to stand for 15 minutes without needing to lean against something, walk for 15 minutes, sit for a total of 30 minutes at a time, or lift or carry more than 15 pounds. Furthermore, the Veteran would be required to miss work of leave early three or more days per month due to his knee pain as well as limitations from his mental health symptoms and fatigue from his sleep apnea. The private physician stated that, when the Veteran’s mental and physical limitations as well as past relevant work and education background are factored in, the Veteran is unable to maintain substantial gainful employment as a result of his service-connected sleep apnea, unspecified depressive disorder, and bilateral knee disabilities since at least the date of his claim in July 2014. The Board must afford this statement little probative value. No objective findings were included in the report and no physical examination was conducted. Furthermore, with regard to the Veteran’s psychiatric disability, the Board affords little probative value to the osteopathic doctor’s statements over the reasoning of licensed psychiatrists, who have specialty degrees in the field of psychology. The osteopathic doctor’s statement appears contrary to the numerous examinations in which the Veteran was examined and his C-file reviewed. The Board finds it outweighed by the remaining medical evidence of record. The Board acknowledges the Veteran’s credible reported symptomatology of the service-connected disabilities, to include bilateral knee pain and stiffness as well as fatigue, diminished concentration, and depression. See April 2011, January 2013, June 2017, and January 2020 VA Examinations; see also September 2020 Private Medical Opinion. The evidence of record also demonstrates the Veteran has not engaged in full-time employment since December 2014, when he voluntarily retired. The Board finds that the probative medical evidence of record indicates that the Veteran is capable of maintaining gainful employment despite his service-connected disabilities. The evidence against the Veteran’s claim of entitlement to TDIU includes multiple VA treatment records as well as VA examinations, none of which show an inability to secure or follow a substantially gainful occupation. See April 2011, January 2013, June 2017, and January 2020 VA examinations. The only probative evidence in support of a TDIU, apart from the Veteran’s lay statements, is the June 2016 private psychologist’s opinion and the August 2016 sleep apnea DBQ. However, these opinions are outweighed by the other evidence of record. The June 2016 private psychologist reported that the Veteran’s psychiatric disability prevents him from maintaining substantially full-time gainful employment. However, the June 2017 and January 2020 VA examiners both found that the Veteran’s psychiatric disability results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. Thus, the June 2016 private psychologist’s opinion is outweighed by the findings of the VA examiners who noted that while the Veteran’s service-connected depressive disorder may cause interference with employment in some areas, it does not preclude all employment. The August 2016 private physician reported that the Veteran’s sleep apnea prevents the Veteran from maintaining work in any employment base. However, the January 2020 VA examiner found that the Veteran’s sleep apnea has no impact on the Veteran’s ability to work. (Continued on the next page)   Furthermore, the evidence suggests that the Veteran’s full-time unemployment as of 2014 was a result of him voluntarily retiring to obtain retirement benefits, as opposed to limitations due to his service-connected disabilities. See February 2020 VA Form 21-4192, Request for Employment Information. The Veteran has further reported being content being retired. See January 2020 VA Mental Disorders Examination. After a review of the record, the Board finds that the evidence of record weighs against a finding of TDIU. Throughout the appeal period, the Veteran has had symptoms of service-connected major depressive disorder, bilateral knee disabilities, and sleep apnea. However, while the Veteran has stated his disability renders him unemployable, the record is insufficient to show that his service-connected disabilities prevent him from securing and maintaining gainful employment. Therefore, entitlement to a TDIU is not warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.