Citation Nr: 21000151 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 13-01 572 DATE: January 4, 2021 ORDER Entitlement to an increased rating for chondromalacia left knee, with medial meniscus tear, rated as 10 percent disabling prior to February 27, 2020, and 20 percent disabling thereafter, is denied. Entitlement to a separate rating for left knee lateral instability, rated as 10 percent disabling prior to February 27, 2020, and 20 percent disabling thereafter, is granted. Entitlement to a separate 20 percent rating for left knee dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion, effective February 27, 2020, is granted. Entitlement to a noncompensable rating for chondromalacia left knee, with medial meniscus tear, limitation of extension, effective January 23, 2019, is granted. Entitlement to a rating in excess of 30 percent for chondromalacia left knee, with medial meniscus tear, limitation of extension, for the period beginning February 27, 2020, is denied. Entitlement to an increased rating for status post rotator cuff repair, left shoulder impingement syndrome, rated as 20 percent disabling prior to January 31, 2011, and 30 percent disabling from January 31, 2011, to July 17, 2016, is denied. Entitlement to a rating of 40 percent for status post rotator cuff repair, left shoulder impingement syndrome, beginning July 18, 2016, is granted. Entitlement to a total disability rating based on individual unemployability effective May 3, 2019, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 3, 2019, is remanded. FINDINGS OF FACT 1. The Veteran’s chondromalacia left knee, with medial meniscus tear, is manifest by painful motion and flexion to, at worst, 70 degrees prior to February 27, 2020. 2. The Veteran’s chondromalacia left knee, with medial meniscus tear, is manifest by painful motion and flexion to 30 degrees beginning February 27, 2020. 3. The Veteran’s left knee lateral instability is manifest by slight instability prior to February 27, 2020. 4. The Veteran’s left knee lateral instability is manifest by moderate instability beginning February 27, 2020. 5. The Veteran’s left knee dislocated semilunar cartilage is manifest by frequent episodes of locking, pain, and effusion effective February 27, 2020. 6. The Veteran’s chondromalacia left knee, with medial meniscus tear, limitation of extension, is manifest by limitation of extension to 5 degrees beginning January 23, 2019. 7. The Veteran’s chondromalacia left knee, with medial meniscus tear, limitation of extension, is manifest by limitation of extension to 20 degrees beginning February 27, 2020. 8. The Veteran’s status post rotator cuff repair, left shoulder impingement syndrome, is manifested by limited motion at shoulder level of the major extremity prior to January 31, 2011. 9. The Veteran’s status post rotator cuff repair, left shoulder impingement syndrome, is manifested by limited motion midway between the side and shoulder level of the major extremity from January 31, 2011, to July 17, 2016. 10. The Veteran’s status post rotator cuff repair, left shoulder impingement syndrome, is manifested by limited motion to 25 degrees from the side of the major extremity beginning July 18, 2016. 11. Beginning May 3, 2019, the Veteran’s service-connected left knee, left shoulder, left ankle, and major depressive disorder disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for entitlement to rating in excess of 10 percent for chondromalacia left knee, with medial meniscus tear, prior to February 27, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5014, 5260. 2. The criteria for entitlement to rating in excess of 20 percent for chondromalacia left knee, with medial meniscus tear, beginning February 27, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5014, 5260. 3. The criteria for a separate 10 percent rating, but not higher, for left knee lateral instability prior to February 27, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for a 20 percent rating, but not higher, for left knee lateral instability beginning February 27, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 5. The criteria for a separate rating of 20 percent for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion effective February 27, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. 6. The criteria for entitlement to a noncompensable rating, but not higher, for chondromalacia left knee, with medial meniscus tear, limitation of extension, beginning January 23, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 7. The criteria for entitlement to a rating in excess of 30 percent for chondromalacia left knee, with medial meniscus tear, limitation of extension beginning February 27, 2020, 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. 8. The criteria for entitlement to a rating in excess of 20 percent for status post rotator cuff repair, left shoulder impingement, prior to January 31, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 9. The criteria for entitlement to rating in excess of 30 percent for status post rotator cuff repair, left shoulder impingement, from January 31, 2011, to July 17, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 10. The criteria for entitlement to 40 percent rating for status post rotator cuff repair, left shoulder impingement syndrome, beginning July 18, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 11. The criteria for an award of a TDIU beginning December 23, 2017, 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 in the United States Marine Corps from May 1978 to March 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2008 and June 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a January 2016 videoconference hearing before the Board; a transcript of the hearing is associated with the record. These matters were previously before the Board in September 2014, June 2016, September 2017, October 2018, and June 2020. Increased Rating Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. “Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citation omitted). VA accordingly concentrates on the evidence that establishes the state of the veteran’s disability in the period one year before the veteran files his claim through the date VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). When determining the appropriate rating for the period on appeal, the Board must consider the appropriateness of a “staged rating.” A “staged rating” compensates the veteran for variations in the disability’s severity during the period on appeal. While 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). 1. Entitlement to an increased rating for chondromalacia left knee, with medial meniscus tear, rated as 10 percent disabling prior to February 27, 2020, and 20 percent disabling thereafter The Veteran contends that he is entitled to a higher rating for chondromalacia of the left knee with medial meniscus tear. Prior to February 27, 2020, chondromalacia of the left knee with medial meniscus tear was rated under DC 5260 (limitation of knee flexion) with additional DCs, called hyphenated DCs. A hyphenated DC is used when a rating under one DC determines its rating based on a residual condition, with the number following the hyphen representing the residual. 38 C.F.R. § 4.27. In the January 2001 rating decision that granted service connection for “chondromalacia, left knee,” the disability was rated noncompensable under DC 5260-5014 (DC 5014 assigns ratings for osteomalacia). In the November 2008 rating decision at issue, the disability was reclassified as “chondromalacia left knee, with medial meniscus tear” and a 10 percent rating, effective August 31, 2007, was granted under DC 5260-5257 (DC 5257 assigns ratings for recurrent subluxation or lateral instability of the knee). A June 2020 rating decision reclassified the disability as “chondromalacia left knee, with medial meniscus tear, limitation of flexion”; an increased 20 percent rating, effective February 27, 2020, was granted under DC 5260. Because the first DC has consistently remained DC 5260, the Board finds that the 10 percent rating was granted under DC 5260, despite listing additional DCs as hyphenated DCs prior to February 27, 2020. The assignment of DC 5260 as the first DC in each of the two hyphenated DCs suggests that the left knee chondromalacia with medial meniscus tear is rated based on compensable limitation of flexion. 38 C.F.R. § 4.71a. A review of the evidence reflects that the left knee disability manifested as chondromalacia with medial meniscus tear and that it did not have compensable limitation of motion based on limitation of flexion prior to February 27, 2020. Therefore, the DC assigned should have been DC 5014-5260, to show that, prior to February 27, 2020, the left knee chondromalacia with medial meniscus tear is being rated based on noncompensable limitation of motion that is painful, pursuant to DC 5014. Under DC 5014 (osteomalacia), disabilities are rated using the classifications of DC 5003 (arthritis, degenerative), which provides two rating options for x-ray-established degenerative arthritis. The first is based on limitation of motion (as classified under the DC for the joint involved) objectively confirmed by findings such as swelling, muscle spasm, or painful motion. The second option under DC 5003 applies where there is no limitation of motion; this option allocates either a 10 percent rating if two or more major joints (or minor joint groups) are involved or a 20 percent rating if the criteria for a 10 percent rating are met and there are occasional incapacitating exacerbations. In this case, DC 5260 is an appropriate DC for limitation of motion of the knee, and no other DC is appropriate, except as outlined below. Accordingly, the Board is changing the DC for left knee chondromalacia with medial meniscus tear to DC 5014-5260 to reflect the actual rating already assigned. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, DC 5260, for limitation of flexion of the leg, 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, DC 5260. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee chondromalacia with medial meniscus tear prior to February 27, 2020. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakness, stiffness, swelling, locking, tenderness, and giving way. Even considering the Veteran’s lay reports of symptoms and noted functional loss, however, the degree of additional limitation reflected by the statements that flare-ups occurred from “as often as 1 time(s) per day and each time lasts for 24 hour(s)” following physical activity (see January 2011 VA examination) to daily (see February 2016 VA examination) do not result in limitation of motion more nearly approximating flexion limited to 30 degrees. In VA examinations and VA medical center (VAMC) records prior to February 27, 2020, the Veteran’s flexion was limited, at most, to 70 degrees (see October 2017 VA examination). A May 2008 VA examination reported left knee flexion to 130 degrees; the VA examination noted pain but found that it did not result in an appreciable limitation to joint function. A January 2011 VA examination listed flexion to 140 degrees (which was also the point at which pain began). A March 2013 VA examination also recorded flexion to 140 degrees. A July 2016 VA examination recorded flexion to 110 degrees (with no pain noted on examination). The October 2017 VA examination indicated left knee flexion to 70 degrees; this VA examination did find that pain causes additional functional loss with repeated use over time but stated that it was unable to describe that loss in terms of range of motion. A December 2018 VA examination noted left knee flexion to 120 degrees; the VA examination noted pain but stated that it did not result in functional loss. The December 2018 VA examination also determined that flexion during flare-ups would be limited to 100 degrees. Accordingly, the Board finds that, prior to February 27, 2020, the preponderance of the evidence is against a rating in excess of 10 percent for left knee chondromalacia with medial meniscus tear because the Veteran’s flexion was not limited to 30 degrees in the period prior to February 27, 2020. Turning now to the period beginning February 27, 2020, the Board has determined that the assigned 20 percent rating is appropriate. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain during flare-ups and with repetitive use, as recorded in a February 2020 private examination. Even considering the Veteran’s lay reports of symptoms and noted functional loss, however, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 15 degrees. A February 2020 private examination noted initial flexion on range-of-motion testing to 110 degrees. The private examination estimated that the Veteran’s flexion would be limited to 30 degrees during flare-ups or when the joint was used repeatedly over time. Thus, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the period beginning February 27, 2020. The Board has also considered the other DCs pertaining to the knee and leg. VA is prohibited, however, from “pyramiding”: evaluating the same disability or manifestation under multiple diagnoses. 38 C.F.R. § 4.14. 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). Diagnoses with overlapping symptomatology are considered the same disability. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Regarding DC 5257 (recurrent subluxation or lateral instability), the Board finds that a 10 percent rating is warranted prior to February 27, 2020, and a 20 percent rating is warranted thereafter. Under this DC, 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, DC 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 DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this DC. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Board finds that the preponderance of the evidence supports a rating of 10 percent, but not higher, for lateral instability of the left knee prior to February 27, 2020. The Board has carefully considered the Veteran’s reports about his left knee “giving way” and instability during this period. English, 30 Vet. App. 347, 352-53. At the January 2016 Board hearing the Veteran testified that his job required “Running, marching, doing physical activity” and “throughout the day as [he is] walking or drilling, marching, whatever, the knee just collapses, gives out in exercise, uh, to the pain that [he is] . . . going through.” The May 2008 VA examination noted the Veteran’s report of his left knee giving way; the VA examination recorded an abnormal medial and lateral meniscus test which it described as “slight[ly]” severe. A February 2009 VAMC record stated that the Veteran had “occassional [sic] joint instability with popping while walking.” The January 2011 VA examination found all stability tests were “within normal limits.” The March 2013 VA examination indicated that there was no instability of the left knee and the instability tests were “Normal.” A January 2014 private medical record stated that the Veteran’s knee “feels like it always wants to give out.” The July 2016 and October 2017 VA examinations found no evidence of instability with testing. Overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate severity prior to February 27, 2020. While the Veteran testified at the June 2016 hearing that his knee “collapses” with exercise, the remaining records described the left knee instability as “slight,” “occassional [sic],” and a “feel[ing] like it always wants to give out,” or even found no evidence of instability on examination. The Board accordingly finds that the Veteran’s left knee instability most nearly approximated a “slight” instability prior to February 27, 2020. Beginning February 27, 2020, the Board finds that the preponderance of the evidence supports a rating of a 20 percent rating, but not higher, for lateral instability of the left knee. This is based on the February 2020 private examination, which described the Veteran’s lateral instability as “Moderate.” Because there is no evidence to support a finding that the left knee lateral instability is severe, the Board finds that a higher 30 percent rating is not warranted. As to DC 5258 (dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion), the Board finds that a 20 percent rating is warranted effective February 27, 2020. Under DC 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, DC 5258. The May 2008 VA examination noted a medial meniscal tear and pain, but the Veteran did not report swelling or locking of the knee. The Veteran noted in the February 2009 VA vocational rehabilitation form that he had “discomfort and swelling aggravated by . . . prolonged sitting with [his] knee in a bent position; unable to walk walk [sic] without severe pain in left leg . . . .” A September 2009 VAMC record noted that the Veteran complained of “Increasing left knee pain, swelling, popping and locking while walking. [The Veteran] said he recently experienced a severe knee swelling and pain, with inability to move joint for 1 week.” A June 2010 VAMC record reported that the Veteran “Still complains of occassional [sic] left knee pain associated with occassional [sic] swelling with activity. He said it has improved remarkably but still locks and popps [sic] occassionally [sic].” A November 2010 VAMC record stated that the Veteran was still experiencing left knee pain described as chronic intemittent [sic] and worse with activity . . . No swelling or recent trauma. In 2009 he experienced a pop in his knee while jogging that resulted in a swelling a day later. At the time reported occassional [sic] buckling and locking that have resolved. At the January 2011 VA examination the Veteran reported pain, locking, and weakness but denied effusion. The March 2013 VA examination indicated that the Veteran experienced pain “Pain with ambulation . . . [and] Swelling with prolonged walking or running. No locking . . . .” The March 2013 VA examination also noted that the Veteran had a past or current meniscal tear but that the Veteran did not have frequent episodes of locking, pain, or effusion. A November 2013 VAMC primary care record noted that the Veteran “had meniscal teare [sic] before and and [sic] now its [sic] hurting. [H]e could be walking and it would feel like falling. [S]weeling [sic] aroudn [sic] the knee after walking.” The January 2014 private medical record indicated that the Veteran had knee pain as well as swelling “on and off since 2000,” with a further note that pain and swelling worsened “with activity and going up and down stairs.” A February 2014 private MRI found “No evidence” of a meniscal injury but did note “Chondromalacia of the patellofemoral joint with a small joint effusion.” At the January 2016 Board hearing, the Veteran testified that he had “continuous” knee pain of “Between a five and a six” on a scale from one to ten. The July 2016, October 2017, and December 2018 VA examinations indicated that the Veteran did not have a current or past meniscus condition. A July 2017 private MRI reported “a small joint effusion.” May 2019 and November 2019 VAMC orthopedic surgery records noted that the Veteran had “no effusion.” The February 2020 private examination determined that the Veteran had a meniscal tear as well as frequent episodes of joint locking, pain, and effusion. Considering this evidence, the Board finds that the Veteran had chronic pain but not frequent episodes of locking or effusion until February 27, 2020. Although the September 2009 VAMC record reported the Veteran’s complaint of “Increasing left knee pain, swelling, popping and locking,” the June 2010 VAMC record noted “occassional [sic]” pain, swelling, and locking. The November 2010 VAMC record “chronic intemittent [sic],” “No swelling,” and resolution of the prior “occasional [sic]” locking. The records that followed referenced locking and effusion periodically but not to the extent that it could be classified as “frequent.” Accordingly, the Board finds that a rating under DC 5258 for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion is not warranted until February 27, 2020. Because 20 percent is the sole (and therefore highest) schedular rating for dislocation of semilunar cartilage, there is no basis to award a higher evaluation. With regard to the left knee limitation of extension, a 30 percent rating was granted in the June 2020 rating decision, effective February 27, 2020. After considering the evidence, the Board has determined that a noncompensable rating is warranted for limitation of extension beginning January 23, 2019. Limitation of knee extension is rated using 38 C.F.R. § 4.71a, DC 5261. Under DC 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, DC 5261. The Board finds that the preponderance of the evidence supports a noncompensable rating for limitation of extension beginning January 23, 2019. Prior to this date, service connection for limitation of left knee extension is not warranted because extension was consistently zero degrees, as documented in the May 2008, January 2011, March 2013, July 2016, October 2017, and December 2018 VA examinations. The Veteran did report in a March 2013 statement that he experienced pain when the VA examiner “full extended [the Veteran’s] leg.” While this report indicated pain at zero degrees (see 38 C.F.R. § 4.71a, Plate II), there is no indication that the Veteran’s knee was limited to 5 degrees extension at that time. A January 23, 2019 VAMC orthopedic surgery record noted left knee extension to 5 degrees, however. May 2019 and November 2019 VAMC orthopedic surgery records also noted extension to 5 degrees. Thus, a noncompensable rating is warranted effective January 23, 2019. Regarding the 30 percent rating effective February 27, 2020, the Board finds that a rating in excess of 30 percent is not warranted. The February 2020 private examination recorded extension to 10 degrees and estimated that the Veteran’s extension would be limited to 20 degrees during flare ups or when the knee was used repeatedly over time. Because there is no evidence of extension limited to 30 degrees, a rating in excess of 30 percent is not appropriate. As for the remaining DCs related to the knee and leg, DC 5256 (ankylosis of the knee) is not for application because the record does not support a finding of ankylosis. DC 5259 (symptomatic removal of semilunar cartilage) is similarly not appropriate as the Veteran has not had semilunar (meniscal) cartilage removed. Compensation under DCs 5262 (impairment of tibia and fibula) and 5263 (genu recurvatum) is not warranted because these conditions are not demonstrated in the record. In conclusion, the Board finds that the preponderance of the evidence is against granting an increased rating for chondromalacia left knee, with medial meniscus tear, based on limitation of flexion. Additionally, the preponderance of the evidence supports grating a separate rating for left knee lateral stability, evaluated as 10 percent disabling prior to February 27, 2020, and 20 percent disabling thereafter. The preponderance of the evidence also supports granting a separate rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion, beginning February 27, 2020. Moreover, the preponderance of the evidence supports entitlement to a noncompensable rating for limitation of left knee extension from January 23, 2019, to February 26, 2020. Finally, the preponderance of the evidence is against granting a rating in excess of 30 percent rating for limitation of left knee extension beginning February 27, 2020. 2. Entitlement to an increased rating for status post rotator cuff repair, left shoulder impingement syndrome, rated as 20 percent disabling prior to January 31, 2011; 30 percent disabling from January 31, 2011, to February 26, 2020 (but not to include a 100 percent temporary rating from April 22, 2013, to June 30, 2013); and 40 percent disabling from February 27, 2020 The Veteran contends that he is entitled to a higher rating for his shoulder disability, classified as “left shoulder impingement syndrome” prior to April 22, 2013, and “rotator cuff repair, left shoulder impingement syndrome,” thereafter. Because the latter classification is a progression of the first, the Board will refer to the disability as the “left shoulder disability.” A January 2001 rating decision granted service connection for left shoulder impingement syndrome and assigned a noncompensable rating, effective April 1, 2000. The November 2008 rating decision at issue continued the noncompensable rating, but a December 2012 rating decision increased the evaluation to 10 percent effective August 31, 2007, then 30 percent effective January 31, 2011 (a May 2018 rating decision later increased the evaluation to 20 percent effective August 31, 2007). A January 2014 rating decision granted a temporary total disability rating from April 22, 2013, to June 30, 2013; the evaluation then returned to 30 percent effective July 1, 2013. Finally, the June 2020 rating decision increased the rating to 20 percent effective February 27, 2020. The Veteran’s left shoulder disability is rated under 38 C.F.R. § 4.71a, DC 5201, for limitation of motion of the arm. Under DC 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between the side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, DC 5201. DC 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). For the period from prior to January 31, 2011, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for left shoulder disability. The evidence of record shows that the Veteran is left-handed, as discussed in examinations such as a May 2008 VA examination (noting that the Veteran writes, eats, and combs his hair with his left hand). The Board acknowledges the Veteran’s lay reports of symptoms in this period and that there was functional loss due to pain, weakness, stiffness, giving way, loss of feeling, and lack of endurance. In statements, the Veteran that reported his pain is “constantly” an eight on a scale from one to ten (May 2008 VA examination) and that he cannot perform push-ups or complete “overhead exercise without extreme pain in left shoulder and arm” (February 2009 VA vocational rehabilitation form). The Veteran also described “extreme pain, weakness and difficulty elevating [his] left arm; loss of feeling throughout [his] left arm” in the February 2009 VA vocational rehabilitation form. Even considering the Veteran’s lay reports of symptoms and noted functional loss, however, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the left side. The Rating Schedule determines normal shoulder flexion and abduction to be from zero to 180 degrees, with shoulder level at 90 degrees; normal internal and external rotation are both from zero to 90 degrees. The May 2008 VA examination documented left shoulder flexion to 145 degrees, abduction to 110 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. Pain was noted on examination on flexion at 145 degrees and on abduction at 110 degrees; the VA examination found no additional limitation of joint function caused by pain. A February 2009 VAMC record noted that the Veteran “experiences shoulder pain with inability to lift arm above the head sideways”; a July 2020 VAMC orthopedic surgery consult additionally recorded that the Veteran “has worse pain with overhead activities and when sleeping on that side at night.” The May 2008 VA examination showed flexion to 145 degrees, abduction to 110 degrees, normal internal and external rotation. The medical evidence and Veteran’s statements discussed limited overhead movement. Based on this evidence, the Veteran’s left shoulder limitation of motion was more closely approximated motion to the shoulder level. A higher rating is for motion midway between the side and shoulder level is accordingly not warranted prior to January 31, 2011. Beginning January 31, 2011, a 30 percent rating is assigned through July 17, 2016. The Board’s analysis will exclude the period from April 22, 2013, to June 30, 2013, because the Veteran received a temporary 100 percent rating during that time, which was the maximum evaluation available. After considering the evidence, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for this period. As noted previously, the Veteran is left-handed. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakness, stiffness, giving way, tenderness, and aching. At a January 2011 VA examination, the Veteran reported flare-ups precipitated by “physical activity and writing” “as often as” once a day lasting for 24 hours; the Veteran described the severity of the flare-ups as “at 8 - 10.” The Veteran stated at the VA examination that during flare-ups he “cannot lift moderate-heavy items” and “cannot perform overhead movement.” At a September 2014 VA examination, the Veteran denied flare-ups but reported functional loss due to “a lot of pain in my left shoulder and it is hard to move.” A September 2014 VAMC pain consult noted the Veteran’s statement that his shoulder pain “is constant and worse with elevating left arm as in driving or writing on chalkboard.” The Veteran testified at the January 2016 Board hearing that he “can’t get [his] arm up to the[black]board” to write during classes.” Even considering the lay reports of symptoms and noted functional loss, however, the Board finds that the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the left side. The descriptions of limited movement described range of motion “overhead” or up on a blackboard. Such movements are at least to the level of midway between the side and shoulder level. This is supported by the medical evidence during this period. The January 2011 VA examination recorded flexion to 90 degrees, abduction to 25 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees; each of these measurements represented the degree at which pain began. A March 2011 VAMC primary care record noted that the Veteran was “still experiencing left shoulder pain with overhead activity”; a January 2013 orthopedic surgery record similar noted left shoulder “pain with overhead activities [sic].” A June 2014 private medical record indicated that the Veteran “developed a burning aching pain radiating from the left shoulder down the posterior aspect of the arm into the hand . . .” two months after his April 2013 rotator cuff repair surgery. A September 2014 VA examination documented flexion and abduction to 150 degrees, external rotation to 75 degrees, and internal rotation to 70 degrees. The VA examination did not estimate the Veteran’s range of motion on repeated use over time, however. A January 2015 VAMC orthopedic surgery record noted that the Veteran’s pain “has improved somewhat” after going to pain management and that “most of the pain is still in the shoulder”; an April 2015 private medical record similarly documented “Persistent pain in the left upper extremity.” A January 2016 private medical record indicated that the Veteran had “moderate” pain in the left shoulder and arm that was “aggravated by activity.” The Veteran demonstrated his limitation of should motion during the January 2016 Board hearing, but the estimated range of motion will not be considered in this decision because it was not recorded with a goniometer by a competent medical provider. Considering this evidence, the Board finds that for the period from January 31, 2011, to July 17, 2016, the Veteran’s left shoulder motion most nearly approximated motion limited to midway between the side and the shoulder level. The medical evidence references limited overhead motion and pain with “overhead activity.” The documented range of motion in the VA examinations also most nearly approximated movement midway between the side and the shoulder level. For these reasons, the 30 percent rating is appropriate for the period from January 31, 2011, to July 17, 2016. Beginning July 18, 2016, the Board finds that the evidence supports a 40 percent rating. The lay statements support a 40 percent rating. In a July 2017 statement, the Veteran’s spouse reported that even prior to his April 2013 surgery, the Veteran “was unable to do any heavy lifting, reach above his head, behind his back or sleep comfortably (without pain) for nearly 10 years.” She continued that As of today [July 2017], his ability to perform those same activities . . . appears to have worsened. The severe pain and discomfort in his shoulder, arm and hand makes performing simple day to day activities unbearable. He can no longer hug and show affection towards me[,] his children[,] or grandchildren without experiencing severe pain. . . . . [H]e is no longer able to drive himself due to the severe pain and discomfort in his shoulder which does not allow him to elevate this arm upward to hold or grip the steering wheel. . . . . [T]he pain and numbness in his shoulder and hand is so that he cannot make a complete fist or even write his own name. Any attempts to do such simple tasks creates excruciating pain. In an October 2017 VA examination the Veteran again denied flare-ups but stated that he had “limitations with lifting and overhead movement.” A July 18, 2016 VA examination did not test the Veteran’s left shoulder range of motion because the Veteran was “In too much pain.” An October 2016 VAMC orthopedic surgery record noted flexion of 70 degrees (active) and 160 degrees (passive), abduction of 70 (“FF”) and 160 degrees (passive), external rotation of 60 degrees, and internal rotation was recorded as “Unable to put hand behind back.” An October 2017 VA examination listed flexion to 50 degrees and abduction to 45 degrees; no range of motion was recorded for internal and external rotation because the Veteran was “unable to position arm in the 90 degree angle to test them due to pain.” The VA examination stated that pain limited the Veteran’s functional ability over time but the VA examination was unable to describe it terms of range of motion. A December 2018 VA examination recorded flexion and abduction to 80 degrees and external and internal rotation to 40 degrees; the VA examination estimated that this would be the Veteran’s range of motion during a flare-up or when used over time. The VA examination also noted that the Veteran’s left shoulder disability impacted his ability to work because “it limits use of left arm for daily activities and for repetitive use. Not able to do lifting or overhead activities.” A February 2020 private examination recorded left shoulder flexion to 150 degrees, abduction to 145 degrees, and external and internal rotation both to 60 degrees. The private examination estimated the Veteran’s flexion and abduction would be 10 degrees while external and internal rotation would be 15 degrees during flare-ups or when the shoulder was used repeatedly over time. The Board notes that the Veteran was in “In too much pain” to test range of motion at the July 2016 VA examination, which suggested a level of severity greater than motion limited to midway between the side and shoulder level, although his range of motion in the October 2016 VAMC orthopedic surgery record showed that he did have flexion, abduction, and external rotation more than midway between his left side and the shoulder level. Because he was unable to put his hand behind his back in October 2016 and could not test internal and external rotation at the October 2017 VA examination, the Board finds that the 40 percent rating remained appropriate. Based on the lay statements and the medical evidence, the Board finds that a 40 percent rating is warranted for the Veteran’s left shoulder disability beginning July 17, 2016. As the Veteran is in receipt of the highest schedular rating for limitation of motion of the arm of the major extremity, there is no basis to award a higher rating. For the entire period on appeal, the Board has considered whether any other DCs related to disabilities of the shoulder would provide for a higher disability rating. The evidence does not reflect that the symptoms would warrant a higher rating under a different DC, however. See 38 C.F.R. § 4.71a. The evidence does not support diagnoses of ankylosis of the shoulder (DC 5200), impairment of the humerus (DC 5202), or impairment of the clavicle or scapula (DC 5203). Thus, DC 5201 is the appropriate DC of the shoulder and arm to evaluate the Veteran’s left shoulder disability. In conclusion, for the period prior to January 31, 2011, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for his left shoulder disability. For the period from January 31, 2011, to July 17, 2016, the preponderance of the evidence is against a rating in excess of 30 percent. Beginning July 17, 2016, the preponderance of the evidence supports the maximum 40 percent rating. 3. Entitlement to a TDIU As a final matter, entitlement to a TDIU is an additional element of all claims for a higher rating in which the Veteran or the record raises the issue of such entitlement. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran reported in a June 2020 VA Form 21-8940 (TDIU application) that his left knee, left shoulder, left ankle, and major depressive disorder disabilities prevented him from securing or following any substantially gainful employment. Thus, the Board finds that the issue of entitlement to a TDIU has been raised. VA will grant a TDIU when the evidence shows that the Veteran is precluded — by reason of his service-connected disabilities — from securing or following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91. If there is only one disability rendering the veteran unable to secure or follow a substantially gainful occupation, a TDIU may be assigned if the disability is rated 60 percent disabling or more. If there are two or more disabilities rendering the veteran unable to secure or follow a substantially gainful occupation, at least one disability must be rated 40 percent disabling and the combined rating of all disabilities must be 70 percent or more to qualify for schedular TDIU. The Veteran meets the schedular criteria for an award of TDIU for the period beginning May 3, 2019, based on major depressive disorder (rated 50 percent disabling) as well as the combined total rating greater than 70 percent for all of the service-connected disabilities. According to his June 2020 TDIU application, the Veteran completed four years of college and worked 60 hours a week from July 2006 to December 22, 2017, as a Junior Reserve Officer Training Corps (JROTC) instructor. The Veteran reported losing 87 days from illness during that period. After considering the evidence, the Board finds that the Veteran’s left knee, left shoulder, left ankle, and major depressive disorder disabilities prevented him from securing and following substantially gainful employment beginning May 3, 2019. This is the first date at which the Veteran meets the schedular requirements for a TDIU. Because the Veteran cited only the left knee, left shoulder, left ankle, and major depressive disorder disabilities in his TDIU application as causing his unemployability, the Board has only included these four disabilities in its analysis (additionally, with the exception of left shoulder keloid scar rated 10 percent disabling, the remaining service-connected disabilities are rated noncompensably disabling). As stated above, the Veteran worked 60 hours a week until December 22, 2017. While he worked full time, VA examinations, other medical evidence, and lay statements noted weakness, stiffness, swelling, giving way, locking, tenderness and pain of the knee (May 2008, January 2011, March 2013, July 2016, and October 2017 VA examinations). He knee disabilities interfered with his ability to stand “for prolonged periods,” sit for long periods “with [his] knee in bent position,” walk for extended periods, and run (February 2009 VA vocational rehabilitation form; see also February 2016 statement; January 2011, March 2013,and October 2017 VA examinations). At the January 2016 Board hearing the Veteran testified that his knee affected his job because he left knee would “collapse[]” and “some days” he could not run with his students. Following the December 2017, a July 2018 VAMC orthopedic surgery record noted that the Veteran had anterior left knee pain, “worse after prolonged sitting.” A November 2018 VAMC pain consultation indicated that the Veteran’s pain “is worse with prolong sitting, gets stiff. Standing up and putting weight on it is the worst pain, though it dulls a bit once it ‘loosens up’.” The December 2018 VA examination recorded the Veteran’s statement that his left knee “limit[ed] walking” after repeated use over time, though this VA examination found that the Veteran’s left knee disability did not impact his ability to work. The February 2020 private examination stated that “During flare-ups [the Veteran] cannot walk, climb stairs or stand for prolonged periods of time, cannot bend down on knees or get back up.” The private examination determined that the Veteran’s left knee disability would impact his ability to work and stated that “Due to frequent flare-ups, constant pain, limited [range of motion], weakness and lack of endurance, sedentary occupation is highly recommended.” The private examination did not provide a definition of what “sedentary employment” would entail. As for the left shoulder (the Veteran’s dominant shoulder), while the Veteran worked full time (through December 22, 2017), VA examinations, other medical evidence, and lay statements noted functional loss due to pain, weakness, stiffness, giving way, loss of feeling, and lack of endurance. The Veteran reported physical limitations including doing push-ups, elevating his arm, and performing “overhead exercise without extreme pain in left shoulder and arm” (February 2009 VA vocational rehabilitation form) as well as lifting heavy objects (September 2014 VA examination). A May 2014 private medical record noted that the Veteran’s left shoulder medication was “helping but it makes him sleepy and he is having difficulty doing his job.” An April 2015 disability form filled out by a private doctor for a state retirement system noted the Veteran’s April 2013 rotator cuff repair surgery as well as the shoulder and hand limitations that followed; however, the private doctor found the Veteran “capable of desk duty job as well as light physical activity. In [the private doctor’s] opinion [the Veteran] does not have permanent and total disability.” At the January 2016 Board hearing the Veteran testified that his left shoulder disability affected his job because it made it hard to write (due to a cold sensation) and he could not “get [his] arm up to the [black]board” to write during classes. A July 2016 VA examination noted the Veteran’s report that he “can’t do nothing with shoulder [sic]” and further mentioned that the Veteran did not have a “waiver but [his] relationship with principle [sic] allows him continued allowance exemptions.” As discussed in the prior section, the July 2017 statement from the Veteran’s spouse indicated that he could not perform heavy lifting, reach above his head, or reach behind his back “for nearly 10 years” and that his condition had worsened such that he could not “make a complete fist or even write his own name” due to pain. An October 2017 VA examination determined that the Veteran could “perform Light Physical and Sedentary activities.” After the Veteran’s last day of work (December 22, 2017) a December 2018 VA examination found that the Veteran’s left shoulder disability did impact his ability to work because “it limits use of left arm for daily activities and for repetitive use. Not able to do lifting or overhead activities.” A February 2020 VAMC occupational therapy record also noted that the Veteran’s ability to reach overhead, lift, and hold were affected by his shoulder disability. The February 2020 private examination “recommended” “sedentary occupation” in the section regarding the shoulder disability’s impact on work, but the private examination also stated that the Veteran experienced “debilitating pain and restricted [range of motion]” throughout flare-ups during which he was “unable to lift, carry, grasp items or perform any overheads tasks . . . with his dominant left shoulder.” The private examination additionally indicated that during flare-ups the Veteran’s left shoulder disability “interferes with ability to perform simple tasks. Specifically, the inability to hold/write with a pen or pencil, open a jar with, lift arm above head, or drive without experiencing considerable pain.” As to the left ankle, a September 2007 VA examination recorded that the Veteran’s ankle was aggravated by walking and standing; the VA examination also noted that the Veteran had morning stiffness lasting less than 30 minutes. A May 2008 VA examination included the Veteran’s report of pain, weakness, stiffness, giving way, and lack of endurance of the left ankle. In the February 2009 VA vocational rehabilitation form the Veteran reported “extreme pain” in the ankle when running and “severe pain” with walking. VAMC records such as two in October 2018 and January 2020 also documented left ankle pain. Regarding the Veteran’s major depressive disorder, which was service connected effective May 3, 2019, a July 2019 VAMC mental health medication record noted that the Veteran “does not do well dealing with people and is more isolated and withdrawn.” The VAMC record also documented the Veteran’s spouse’s reports that that the Veteran “is very irritable,” has “poor concentration,” “forgets what he was going to do,” has “poor energy,” is “helpless with L arm being disabled,” and “tears up when talking about his pain.” A March 2020 VA examination indicated that the Veteran currently reports depressed mood most of the day, nearly every day . . . He has markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day as indicated by subjective account. Veteran experiences insomnia nearly every day and experiences a loss of energy nearly every day. He experiences diminished self-esteem. He also experiences a diminished ability to think or concentrate, nearly every day by subjective account. After considering the evidence, the Board finds that a schedular TDIU is warranted effective May 3, 2019. The Veteran does not meet the schedular requirements under 38 C.F.R. § 4.16 prior to May 3, 2019, but his physical limitations with walking, running, grasping, and writing during flare-ups as well as his poor concentration, forgetfulness, and poor energy due to his major depressive disorder render him unable to secure or follow a substantially gainful occupation beginning May 3, 2019. REASONS FOR REMAND The Veteran does not meet the schedular percentage requirements under 38 C.F.R. § 4.16(a) for a TDIU award prior to May 3, 2019. The Veteran’s left knee and left ankle limited his ability to walk, run, or sit with his knee bent for extended periods. As for the Veteran’s left shoulder, the July 2017 statement from the Veteran’s spouse indicated that he could not perform heavy lifting, reach above his head, or reach behind his back “for nearly 10 years” and that his condition had worsened such that he could not “make a complete fist or even write his own name” due to pain. Furthermore, the December 2018 VA examination found that the Veteran’s left shoulder disability impacted his ability to work because “it limits use of left arm for daily activities and for repetitive use. Not able to do lifting or overhead activities.” Considering this evidence, particularly the evidence reporting difficulty writing or using the dominant left arm repetitively, the Board has determined that there is sufficient evidence to warrant extraschedular consideration by the Director of Compensation Service in accordance with 38 C.F.R. § 4.16(b). See McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (citation omitted). The Board itself may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that “the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321(b)” or § 4.16(b)). The matter is REMANDED for the following action: Refer the issue of entitlement to an extra-schedular TDIU prior to May 3, 2019, to VA’s Director, Compensation Services, per 38 C.F.R. § 4.16(b). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Ripplinger, 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.