Citation Nr: 21002805 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 12-27 992 DATE: January 15, 2021 ORDER Entitlement to a rating of 20 percent, but no higher, for left knee degenerative joint disease (DJD) with decreased range of motion under Diagnostic Code (DC) 5258 (reassigned from DC 5260) from May 28, 2009, is granted. Entitlement to a rating of 20 percent, but no higher, for left knee status post cruciate ligament repair with patellofemoral pain syndrome from May 28, 2009, (and excluding a period of a temporary total rating from August 18, 2009, to November 1, 2009) is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities from October 27, 2015, to May 4, 2017, is granted. Entitlement to a TDIU due to service-connected disabilities for the period prior to October 27, 2015, is denied. FINDINGS OF FACT 1. From May 28, 2009, the Veteran’s left knee DJD with decreased range of motion was manifested by painful motion and dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 2. With reasonable doubt resolved in favor of the Veteran, from May 28, 2009, the Veteran’s left knee status post cruciate ligament repair with patellofemoral pain syndrome was productive of no more than moderate instability. 3. From October 27, 2015, to May 4, 2017, the competent and credible evidence of record shows that the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment. 4. For the period prior to October 27, 2015, the Veteran’s service-connected disabilities are not shown to have precluded him from obtaining or maintaining a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. From May 28, 2009, the criteria for entitlement to a rating of 20 percent, but no higher, for DJD of the left knee with decreased range of motion have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5258. 2. From May 28, 2009, the criteria for entitlement to a rating of 20 percent, but no higher, for left knee status post cruciate ligament repair with patellofemoral pain syndrome have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5257. 3. From October 27, 2015, to May 4, 2017, the criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 4. For the period prior to October 27, 2015, the criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1994 to July 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. In March 2016, August 2017, and March 2019, the Board remanded these matters to the RO for further development. As an initial matter, the Board notes that in a September 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran entitlement to a TDIU from May 4, 2017, the date VA received the Veteran’s intention to file a claim for compensation. However, as entitlement to a TDIU arose during the pendency of the Veteran’s left knee increased rating claims, the issue of entitlement to a TDIU prior to May 4, 2017, is before the Board under Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a rating of 20 percent, but no higher, for left knee DJD with decreased range of motion and entitlement to a rating of 20 percent, but no higher, for left knee status post cruciate ligament repair with patellofemoral pain syndrome The Veteran seeks increased ratings for his service-connected left knee disabilities. The Veteran is currently in receipt of a 10 percent rating for his left knee DJD with decreased range of motion under DC 5260 and a 10 percent rating for his left knee status post cruciate ligament repair with patellofemoral pain syndrome (excluding periods of temporary total ratings from November 18, 2008, to February 1, 2009, and from August 18, 2009, to November 1, 2009) under DC 5257. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Limitation of extension of the knee is rated under DC 5261 and limitation of flexion of the knee is rated under DC 5260. 38 C.F.R. § 4.71a. Under these codes, a 10 percent rating is warranted when flexion of the knee is limited to 45 degrees or when extension is limited to 10 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees or when extension is limited to 15 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees or when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees and a 50 percent rating is warranted when extension is limited to 45 degrees. Id. Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under DC 5257, slight recurrent subluxation or lateral instability of a knee warrants a 10 percent. A 20 percent rating requires moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The Board notes that because the terms “slight,” “moderate,” and “severe” are not defined in the Rating Schedule, instead of applying a mechanical formula, the Board must evaluate all the evidence of record to ensure that its adjudication of an increased rating claim is equitable and just. See 38 C.F.R. § 4.6. Additionally, DC 5258 provides that a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint while DC 5259 provides that a 10 percent rating may be assigned for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a. Separate ratings for knee disabilities may also be assigned for a disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. As an initial matter, the Board notes that VA received the Veteran’s informal non-initial claim for left knee increased ratings on May 28, 2009. As such, the Board will consider the evidence of record from May 28, 2008 (one year prior to the date of the Veteran’s claim). Turning to the evidence of record, a November 2008 VA treatment record reflects that the Veteran’s left knee was tender to deep palpation. He had full extension and flexion without evidence of effusion. Examination revealed a mild positive anterior drawer sign. The Veteran underwent left knee surgery in November 2008 involving arthroscopic debridement, removal of loose bodies, and meniscectomy. His post-operative diagnosis was torn medial and lateral menisci, arthritic changes of the knee, and severe chondromalacia of the patella. See November 2008 operation report. As noted above, the Veteran is in receipt of a temporary total rating for this surgery from November 18, 2008, to February 1, 2009. Thereafter, an April 2009 VA treatment record reflects complaints of lateral inferior patellar pain as well as some deep knee pain with intermittent clicking and catching/popping. The Veteran denied feelings of instability about his knee. On physical examination, the Veteran had very slight effusion. He had full range of motion with extension to zero degrees and flexion to 130 degrees. The VA physician noted it was possible that the Veteran reinjured his meniscus or propagated a tear, but because the Veteran denied any real significant mechanical complaints with a true locking type injury, the VA physician believed the Veteran irritated his knee and had some ongoing synovitis related to such. However, in June 2009, the Veteran continued to complain of medial knee pain with locking and catching. See June 2009 VA orthopedic treatment notes. His McMurray test was positive, and the Veteran was assessed with a likely meniscus injury. He also had occasional instability symptoms and was noted to have moderate laxity with anterior drawer with end point present. See id. A July 2009 VA treatment record further reflects that the Veteran was prescribed a left knee immobilizer after reporting that his left knee kept giving out. In August 2009, the Veteran reported falling after his left knee buckled and gave out. See August 2009 VA treatment record. He also reported experiencing some instability and pain in the knee since falling. VA treatment records that month reflect that he was ambulating with a cane. Moreover, an August 2009 x-ray reflects that the Veteran had a small suprapatellar joint effusion and persistent mild lateral subluxation of the patellae. In August 2009, the Veteran also underwent another left knee surgery. His pre-operative report indicates that two months prior, he started to again experience locking and pain. He was assessed with a meniscal fragment of the left knee and underwent a left knee arthroscopy with debridement and meniscotomy. See August 2009 operative note. As noted above, the Veteran is in receipt of a temporary total rating for this surgery from August 18, 2009, to November 1, 2009. Thereafter, in November 2009, the Veteran reported feeling a pop in this knee. Upon examination, his left knee had a slight anterior drawer sign and slight swelling with no obvious effusion. Likewise, a January 2010 VA treatment record reflects that x-ray findings did not reveal joint effusion but that there was persistent, mild lateral subluxation of the bilateral patellae. In April 2010, the Veteran reported that he had an episode of locked knee where he could not bend his knee for approximately 20 to 30 minutes. See April 2010 VA treatment record. Upon examination, the Veteran had a positive pop with range of motion of the knee but painless range of motion. He did not have erythema or effusion but was mildly tender along palpation of the joint line. He had normal strength and normal anterior drawer testing. An August 2010 VA treatment record further reflects that the Veteran had full extension and flexion without effusion or ligamentous laxity. In October 2010, the Veteran reported that he had no locking but felt that his left knee would give way. He had crepitus and his range of motion was zero to 130 degrees. See October 2010 VA treatment record. He was assessed with moderate to severe arthritis. The Veteran was afforded a VA joints examination in November 2010. At the time of the examination, he reported constant pain in both knees that kept him awake at night. He had popping, catching, grinding, and swelling as well as a locking type sensation in both knees where he had tried to do a partial squat. The Veteran also had episodes of giving way and experienced daily flare-up episodes. He had six visits to the Emergency Department associated with his knee pain in the last 12 months. He utilized arch supports, a walking stick or cane, and crutches. He had genu valgum bilaterally. Upon examination, left knee extension was to zero degrees and flexion was to 105 degrees, limited by pain and girth. There was no change in range of motion on repetitive testing. There was no instability on either knee bilaterally, but the examiner noted that the Veteran had a subtle difference between the right and left knee ACL Lachman examination. The Veteran had a positive McMurray’s test bilaterally as well as crepitus. X-rays of the left knee were suggestive of suprapatellar joint effusion. The VA examiner noted the Veteran was expected to have mild to moderate weakness, mild to moderate fatigability, and mild to moderate loss of coordination secondary to repetitive use activity. The examiner further noted that the Veteran’s activities of daily living were unaffected and that the Veteran had not missed time from work. Thereafter, during the June 2012 VA Decision Review Officer (DRO) Informal Conference Report, the Veteran reported that he wore both a hard and soft brace on his left knee and that he was issued a cane to use on days when his knee felt particularly unstable and created a fall risk. That month, June 2012 VA treatment records reflected the Veteran had left knee mild effusion with decreased range of motion and occasional swelling. Specifically, a June 2012 left knee imaging study showed the Veteran had a small suprapatellar joint effusion and mild lateral subluxation of the patella. A July 2012 VA treatment record also reflects that the Veteran had tried an over the counter brace unsuccessfully and that due to severe laxity, he needed a brace with more rigid support. He was afforded another VA knee examination in July 2012 where he reported daily pain in the left knee and flare-ups of pain approximately two to three times per week. The Veteran indicated that his left knee gave out at times and at the time of the examination, he occasionally used a brace and cane for his left knee. He was also awaiting an appointment for a custom ACL stabilizing brace. On initial range of motion testing, flexion was to 90 degrees, with painful motion beginning at 75 degrees, while extension was to zero degrees without objective evidence of pain. The examiner noted the Veteran had functional loss and/or functional impairment after repetitive use with contributing factors of less movement than normal, pain on movement, and disturbance of locomotion. The Veteran also had tenderness or pain to palpation for the joint line or soft tissue of both knees. There was anterior instability to the left knee as well as frequent episodes of joint pain due to the Veteran’s meniscal condition. The examiner also found that the Veteran’s symptoms were residual signs and/or symptoms due to his meniscotomy. His knee condition also impacted his ability to work because he had to frequently stand and walk at his job. April 2013 and February 2014 VA treatment records reflect that the Veteran had full range of motion of the knees. During the November 2015 Board hearing, the Veteran reported arthritis flare-ups of the left knee and that he fell at work in 2012. See November 2015 Board hearing transcript, pp. 6-9. He testified that he experienced side to side flexion of the knee, including laxity of the knee. Id. at pp. 8-11. That same month, in November 2015, the Veteran complained of intermittent swelling and knee catching. See November 2015 VA treatment record. He was assessed with mild effusion over his bilateral knees. However, a November 2015 VA left knee x-ray also revealed no significant left knee effusion. He was noted to have mild lateral subluxation on the patella. A February 2016 VA treatment record also reflects that the Veteran experienced balance issues as a result of his chronic knee and back pain. In February 2016, the Veteran further reported difficulties with walking due to his knee pain and was issued a replacement single point cane. See February 2016 VA treatment record. A March 2016 left knee MRI reflects large joint effusion with changes of hemarthrosis of synovitis, ACL graft failure, a small Baker’s cyst, and tri- compartment osteoarthritis severely involving the patellofemoral compartment. A VA orthopedic consultation that month further reflects that the Veteran reported pain with most activities including walking, standing, and stairs. He also complained of mechanical catching and popping of the left knee. Although he wore a knee brace, he was noted to have no instability. On physical examination, he was negative for an effusion but was positive for patella crepitus. McMurray and Lachman tests were also positive. He had a limp associated with his knee pain and had a valgus deformity. His range of motion was 110 to zero degrees. He was assessed with moderate left knee DJD. MRI and x-rays also showed DJD with near complete loss of the medial and lateral meniscus. See March 2016 VA addendum treatment note. Thereafter, the Veteran was afforded another VA examination in April 2016. He reported worsening of the knee since his last VA examination, including flare-ups of the left knee with increased pain and functional loss in the form of less motion and more pain. At the time of the examination, the Veteran regularly used a cane for left knee support. On initial range of motion testing, flexion was to 115 degrees and extension was to zero degrees. There was pain noted on the examination and it caused functional loss in both flexion and extension. The was also objective evidence of pain with weight bearing and objective evidence of crepitus. The examiner found that pain, fatigue, and weakness significantly limited functional ability with repeated use over a period of time and during flare-ups but was unable to describe this functional loss in terms of range of motion. The examiner noted that the Veteran reported his range of motion was reduced during flare-ups and after repeated use over time. Muscle strength testing and stability testing were normal. There was no ankylosis of the left knee. The examiner further found that the Veteran did not have a history of recurrent subluxation, lateral instability, nor recurrent effusion. The examiner noted a prior meniscal condition and noted the residuals of this process to be less motion and more pain. The Veteran also had pain when working and participating in activities of daily living. The examiner found that the Veteran’s left knee condition was moderate in severity and had worsened. A May 2017 VA orthopedic surgery note additionally reflects that range of motion testing revealed flexion to 120 degrees and extension to zero degrees. Repeated movements did not show pain, weakened movement, excessive fatigability, incoordination or flares. On examination, the Veteran had no patella deformity, no signs or symptoms of effusion, nor patellar instability. The Veteran was seen for another VA knee examination in July 2017. At the time of the examination, the Veteran denied flare-ups but reported functional loss in an inability to engage in prolonged walking, running, or jumping. He regularly used a brace to support his left knee and regularly used a cane to support his ambulation as he limped when he walked. On initial range of motion testing, flexion was to 140 degrees and extension was to zero degrees. There was pain noted on the examination in flexion, but it did not cause functional loss. There was no evidence of pain with weight-bearing. There was also evidence of pain on passive range of motion and on non-weight bearing of the left knee. There was no additional functional loss of range of motion after repetitive use. The examiner indicated that there was additional functional loss with repeated use over time due to pain and estimated that range of motion would be limited to 135 degrees of flexion and zero degrees of extension. Muscle strength testing and stability testing were normal. There was no ankylosis of the left knee and the examiner found that the Veteran did not have a history of recurrent subluxation, lateral instability, nor recurrent effusion. The examiner noted that the Veteran had residual signs or symptoms due to his meniscectomy, arthroscopic, or other knee surgery, including residuals of pain. The Veteran’s condition also limited his ability to sit and walk for prolonged periods of time. He was again examined by VA in January 2018. At the time of the examination, the Veteran walked one time a day with his activities of daily living and went up and down stairs about 15 times a day. He had daily pain that was worse with climbing stairs, sitting, driving, or squatting. He denied flare-ups of the left knee and indicated that he had a feeling of giving way of the left knee once a week, but there was no locking or overall instability. The VA examiner found that the Veteran did not have an injury, event, or major change in his left knee in the past 10 years. On initial range of motion testing, flexion was to 130 degrees and extension to zero degrees. His range of motion was additionally limited to 110 degrees due to pain. There was no evidence of pain on passive range of motion testing, with weight-bearing, or when the joint was used in non-weight bearing. The examiner found that the Veteran’s range of motion itself did not contribute to his functional loss. There was no objective evidence of crepitus. The Veteran was unable to perform repetitive use testing. The examiner indicated that the Veteran’s reports of use over time were medically consistent with the examination, but found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. Muscle strength testing and stability testing were also normal. There was no ankylosis of the left knee. The examiner also found the Veteran’s left knee would impact his ability to work due to daily knee pain that was worse with stairs, sitting, walking, driving, twisting, and squatting. The examiner, however, indicated that the Veteran’s knee condition would not otherwise restrict him from light or sedentary employment. Thereafter, an April 2019 x-ray of the bilateral knee reflected no acute fracture of dislocation of the knee nor suprapatellar joint effusion. A November 2019 VA treatment record also indicates that the Veteran had good range of motion of the joints. Additionally, a December 2019 VA treatment note showed that the Veteran had left knee functional loss including disturbed sleep; restrictions with daily living activities, work, and recreation; and pain with stairs and getting up after prolonged sitting. Finally, the Veteran was most recently afforded a VA knee examination in September 2020. At the time of the examination, the Veteran reported flare-ups in the form of a frequent increase in severe pain that is resistant to medication. He reported experiencing functional loss or functional impairment with limited standing, walking, climbing, and seating. The Veteran constantly used a custom hard knee brace to provide stability and to reduce pain during ambulation. Range of motion testing revealed flexion to 110 degrees and extension to zero degrees while both flexion and extension exhibited pain. The Veteran’s passive range of motion was the same as his active range of motion. The VA examiner found that the range of motion contributed to the Veteran’s functional loss. The examiner also noted that there was objective evidence of localized tenderness or pain on palpation of the left knee joint or associated soft tissue that was moderate in severity. There was also objective evidence of crepitus. There was no evidence of pain with weight-bearing or when used in non-weight bearing. The VA examiner found that pain significantly limited functional ability with repeated use over time and during flare-ups and estimated that the Veteran’s range of motion under these conditions would be zero to 100 degrees. The Veteran did not have ankylosis nor muscle atrophy. Muscle strength and joint stability testing were normal. He did not have a history of recurrent subluxation, lateral instability, nor recurrent effusion. The examiner noted that the Veteran currently had a meniscal condition as the Veteran was status post medial and lateral meniscus repair. A. Left Knee DJD with Decreased Range of Motion Applying the facts in this case to the criteria set forth above, the Board finds, and the record supports, that a 20 percent rating, but no higher, is warranted for the Veteran’s left knee disability from May 28, 2009, under DC 5258, which contemplates dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Although the Veteran’s left knee DJD is currently rated under DC 5260, the Board finds that DC 5258 more appropriately encapsulates the Veteran’s disability. In this regard, the assignment of a particular DC is "completely dependent on the facts of a particular case" and the Board can choose the DC to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch DCs to reflect more accurately a claimant's current symptoms. See also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the DC associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Here, the Board finds that since May 28, 2009, the Veteran’s left knee DJD has more closely manifested in residual signs and symptoms from his meniscal condition, including painful motion, effusion, and locking pain, which meets the criteria for a 20 percent rating under DC 5258. Accordingly, the Board shall discontinue the Veteran’s 10 percent disability rating under DC 5260 from May 28, 2009, the date of the Veteran’s increased rating claim, and shall replace that rating with a 20 percent rating under DC 5258. As discussed below, this change favorably increases the evaluation assigned to the Veteran’s left knee DJD from a 10 percent to 20 percent rating; thus, there is no prejudice or rating reduction to the Veteran in reassigning the DC. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). The evidence shows the Veteran experienced episodic locking, effusion, and pain as related to his meniscal condition. For example, the VA examinations of record consistently document that the Veteran had a meniscal condition. Specifically, the July 2012 VA examiner found that the Veteran had frequent episodes of joint pain due to his meniscal condition and that his left knee symptoms were residual signs and/or symptoms of his meniscotomy. Likewise, both the April 2016 and July 2017 VA examiners noted that pain was a residual sign or symptom of the Veteran’s condition. Significantly, the evidence shows left knee joint effusion in x-rays and VA assessments/treatments in August 2009, November 2010, June 2012, November 2015, and March 2016. The Veteran also complained of medial knee pain, locking, and catching, and he also had documented pain to palpation. Although the Veteran’s left knee effusion is intermittent throughout the appeal period, resolving all doubt in favor of the Veteran, the Board finds that a maximum rating of 20 percent under DC 5258 is warranted. The Board has changed the Veteran's DC as opposed to awarding a separate rating under DC 5258 or DC 5259 as doing so would constitute improper pyramiding. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In this regard, the Court held that rating a knee disability under DCs 5257 or 5260/5261 or both, does not, as a matter of law, preclude the assignment of a separate rating for a meniscal disability of the same knee under DC 5258 or 5259, or vice versa. Lyles v. Shulkin, 29 Vet. App. 107 (2017). However, the Board finds that DC 5258 and DC 5260 both rate knee disabilities based on limitation of motion and knee pain, as a cause of limitation of motion. In the case of DC 5258, limitation of motion is reflected by the symptoms or findings of pain, locking, and effusion into the joint. See also FIRESTEIN, KELLEY'S TEXTBOOK OF RHEUMATOLOGY 571 571 (9th ed. 2012) ("locking" is the sudden loss of ability to extend the knee and is usually painful and may be associated with an audible noise, such as a click or pop). In the case of DC 5260, such limitation of motion is encompassed by the limitation of flexion, including as due to pain. Both DCs overlap in "locking" as a form of limitation of motion that is usually accompanied by pain. Therefore, both DCs rate based on knee pain and limitation of motion due to pain. Here, the Veteran’s rating for limitation of flexion under DC 5260 is based on painful motion, as opposed to a demonstrated limitation of motion meeting the criteria for a compensable rating. Thus, in this case, to assign separate ratings under DC 5258 or 5259 and DC 5260 would compensate the Veteran twice for the same symptomatology, which would result in impermissible pyramiding. 38 C.F.R. § 4.14; Esteban, supra. Likewise, separate ratings under DC 5258 and 5259 would also constitute pyramiding as both DCs contemplate the same symptomology. As separate compensable ratings may not be assigned, the Board's final consideration is whether a higher rating may be assigned under additional DCs, including DCs 5260 or 5261. Here, the Board finds that higher ratings are not warranted based on limitation of motion at any point during the appeal period. In this regard, review of all the evidence of record does not reflect that either flexion or extension of the Veteran’s left knee is so limited as to warrant a disability rating in excess of 20 percent under either range of motion DC. For example, the evidence shows that throughout the appeal period, the Veteran has had full extension of his left knee. Additionally, the various flexion readings do not convey that the Veteran’s left knee flexion is so limited as to warrant a disability rating of 30 percent or higher, as his flexion has been, at worst, 90 degrees and/or 75 degrees with consideration of pain. To reiterate, a 30 percent rating under DC 5260 contemplates flexion limited to 15 degrees. The Veteran's flexion has not resembled 15 degrees during the appeal period. Additionally, as the evidence does not show ankylosis, impairment of the tibia or fibula, or genu recurvatum, for his knee, higher or separate ratings under DCs 5256, 5262, and 5263, respectively, are not warranted. Accordingly, the Board finds that a 20 percent disability rating under DC 5258 is more appropriate at this time since the Veteran's limitation of motion would not provide a higher rating and the Veteran would not be entitled to separate ratings for limitation of motion of the left knee, as neither limitation meets the criteria for a 10 percent rating. Consequently, the Board finds that the Veteran is not entitled to higher or separate ratings for his left knee DJD with decreased range of motion under DC 5260 or 5261 at any point in the appeal period. In reaching this conclusion, the Board is cognizant that the evidence shows the Veteran had functional loss causing limitation of motion due to pain, which was exacerbated during flares and repetitive use. However, the Veteran’s range of motion limitations, particularly the range of motion testing, as documented in the medical records, as well as the estimates provided after repeated use and during flare-ups, do not meet or more closely approximate the limitations that would be associated with a higher rating. The Board has also considered the implications of the decision in Correia v McDonald, 28 Vet. App. 158, 168 (2017), in which the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 28 Vet. App. 158 (2016). The Board finds that the September 2020 VA examiner specifically addressed Correia considerations in rendering findings that there was no pain with weight bearing or non-weightbearing range of motion testing and that passive range of motion was the same as active range of motion. The Board notes that where no pain was noted, as with this examination, the additional range of motion testing would not result in additional loss of range of motion. Further, active range of motion testing results tend to produce the "worst case scenario" of impairment, and thus would tend to support the highest possible rating. The Board is also cognizant of the fact that the September 2020 VA examiner found that pain caused additional functional loss but did not offer an opinion as to the degree of additional functional loss due to such pain. The Board, therefore, finds that the best evidence of functional loss due to pain that is before the Board is the VA examinations reflecting range of motion with pain, including the January 2018 VA examination showing flexion additionally limited to 110 degrees due to pain and the July 2012 VA examination showing flexion additionally limited to 75 degrees due to pain. The Board also notes that several VA treatment records reflect the Veteran had full range of motion, including, more recently, a November 2019 VA treatment record indicating that the Veteran had good range of motion of the joints. Additionally, the VA examination reports of record detail the Veteran’s pain level, to include with motion, and his reported functional loss. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran’s disability. Thus, the Board finds that the VA examination reports, together with the other evidence, are adequate to decide the Veteran’s increased rating claim and that a remand for additional development would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). Moreover, the Board finds that the assigned 20 percent rating under DC 5258 more adequately accounts for the Veteran’s painful motion and the functional impact of his disability, and such has been contemplated in the assigned rating. See DeLuca, 8 Vet. App. 202. The Board also acknowledges that the evidence shows the Veteran experiences instability and a higher rating for such under DC 5257 will be discussed in the section below. In sum, and for the above reasons, the Board finds that a maximum rating of 20 percent for left knee DJD with decreased range of motion under DC 5258 is warranted from May 28, 2009, the date of the Veteran’s increased rating claim. In this regard, the Board finds that the increase in the Veteran’s symptoms occurred prior to the one-year period before his claim. For example, the evidence reflects that the Veteran experienced knee effusion with popping and grinding prior to May 28, 2008. See, e.g., January 2008 VA treatment note (reflecting a knee effusion). As such, a 20 percent rating under DC 5258 is warranted from May 28, 2009, the date of the Veteran’s increased rating claim. B. Left Knee Status Post Cruciate Ligament Repair with Patellofemoral Pain Syndrome The Board finds, after resolving all reasonable doubt in the Veteran’s favor, that a separate 20 percent rating, under DC 5257, is warranted for the Veteran’s left knee instability from May 28, 2009. Based on the evidence summarized above, the Veteran’s left knee instability more nearly approximates a “moderate” disability. In this regard, the Veteran has consistently reported intermittent instability and objective testing has also shown instability. For example, a June 2009 VA treatment record reflects that the Veteran had occasional instability symptoms and was assessed with moderate laxity. The November 2010 VA examiner also found that the Veteran was expected to have mild to moderate weakness, mild to moderate fatigability, and mild to moderate loss of coordination secondary to repetitive use activity. During the July 2012 VA examination, the Veteran reported that his left knee gave out at times and testing revealed anterior instability. In March 2016, Lachman testing was also positive, and the Veteran again reported experiencing a feeling of giving way of the left knee during the January 2018 VA examination. Critically, as documented in the VA examinations and VA treatment records addressed above, the Veteran used a cane and brace throughout the appeal period. In light of the above, the Board finds the Veteran’s reports of instability to be credible and finds that they are substantiated by the medical evidence of record. Therefore, the Veteran’s competent and credible lay statements, coupled with his regular use of a cane and brace for stability, convince the Board that the Veteran’s disability more nearly approximates moderate instability. Indeed, medical providers have assessed the Veteran’s disability as moderate throughout the appeal period, to include in June 2009 when the Veteran assessed with moderate laxity. See June 2009 VA treatment record. Thus, the Board finds that the assignment of 20 percent rating for moderate left knee instability is warranted from May 28, 2009, the date of the Veteran’s increased rating claim. In this regard, the evidence does not show a factually ascertainable increase in the Veteran’s disability within the one-year period prior to the Veteran’s claim. In fact, the evidence shows that the Veteran’s instability was assessed as mild and/or slight in the one-year period prior to the Veteran’s claim. Additionally, the Board finds that a higher rating for left knee instability is not warranted during the appeal period. In this regard, notations of a history of knee instability and/or subluxation are largely absent from the VA examinations of record while the evidence has shown a minimal measurable level of disability on joint stability tests for the left knee. Notably, tests of stability were mostly within normal limits except for a few occasions, to include during the July 2012 VA examination, where the value was 1+. Additionally, x-ray evidence revealed persistent mild lateral subluxation of the patella. See August 2009, June 2012, and November 2015 imaging reports. As such, the Veteran’s assigned 20 percent rating from May 28, 2009, under DC 5257, adequately considers the Veteran’s instability symptoms and a higher rating is not warranted. 2. Entitlement to a TDIU due to service-connected disabilities for the period prior to May 4, 2017 By way of background, and as noted above, when the Veteran submitted an intent to file a claim for compensation in May 2017 and a formal TDIU claim (VA Form 21-8940) in June 2017, a claim of entitlement to a TDIU was also raised by the record as part of the Veteran’s claim for increased ratings for his service-connected left knee disabilities. See Rice, 22 Vet. App. at 447. In a September 2017 rating decision, the AOJ granted entitlement to a TDIU from May 4, 2017, the date VA received the Veteran’s intent to file a claim for compensation. However, as the issue of entitlement to a TDIU was raised as part and parcel of the Veteran’s increased rating claims on appeal, the issue of whether the Veteran is entitled to a TDIU for the period prior to May 4, 2017, also remains on appeal. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected condition. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, for the period prior to May 4, 2017, the Veteran was service connected for major depressive disorder and generalized anxiety disorder (rated as 30 percent disabling from May 28, 2009, to May 4, 2017); left knee DJD with decreased motion (now rated as 20 percent disabling from May 28, 2009); left knee status post cruciate ligament repair with patellofemoral pain syndrome (now rated as 20 percent disabling from May 28, 2009, and excluding periods of temporary total ratings); tinnitus (rated as 10 percent disabling from August 18, 2010); right knee patellofemoral pain syndrome with minimal degenerative changes associated with left knee status post cruciate ligament repair with patellofemoral pain syndrome (rated as 10 percent disabling from October 29, 2010); hearing loss (rated as noncompensable (0 percent) from August 18, 2010); and a left knee scar (rated as noncompensable from May 4, 2017). As such, the Board finds that the Veteran meets the schedular criteria for a TDIU from October 29, 2010. In this regard, with consideration of the Board’s grant of left knee increased ratings in this decision, and the bilateral factor, the combined rating of the Veteran’s disabilities is rounded to 70 percent from October 29, 2010. As the Veteran’s right knee, left knee DJD with decreased range of motion, and left knee status post cruciate ligament repair with patellofemoral pain syndrome all affect a single body system, that is they are all orthopedic, they are considered to be a single disability for purposes of whether the Veteran has at least one disability rated at 40 percent or more. Thus, for the period from October 29, 2010, the Veteran is in receipt of a combined rating sufficient to meet the schedular requirements for a TDIU. However, for the period prior to October 29, 2010, the Veteran does not meet the schedular criteria for a TDIU. Nonetheless, while the Board is precluded from assigning TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) in the first instance, if it is determined that there is a reasonable possibility that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to October 29, 2010, the Board may refer the matter to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis. After review of the evidence and resolving any doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities have precluded him from securing and maintaining substantially gainful employment from October 27, 2015, the date the evidence shows that the Veteran stopped working full time. The evidence reflects that the Veteran completed a high school education. See June 2017 VA Form 21-8940. After his discharge from service, he worked at a sawmill and worked in construction. See January 2018 VA examination. Thereafter, he worked in service stations and performed automobile body work. Id. Specifically, a September 2007 Vocational Rehabilitation application reflects that the Veteran was working as a cashier and fuel attendant for a gas station. The Veteran also worked full time as a gas station manager from January 2009 to October 2015. See September 2017 VA Form 21-4192. Specifically, his last employer noted that the Veteran stopped working on October 27, 2015, the date of his last payment, and that the Veteran voluntarily quit his position as a station manager. Id. The Veteran has consistently asserted that his service-connected disabilities are the reason that he stopped working and multiple providers have confirmed work-related inabilities with his disabilities. For example, a July 2009 VA Vocational Rehabilitation and Employment counseling psychologist/vocational rehabilitation counselor found that the Veteran’s service-connected disabilities substantially contributed to his employment impairments. Specifically, the counseling psychologist/vocational rehabilitation counselor concluded that the Veteran’s service-connected disabilities kept him from preparing for and seeking suitable employment due to his lack of an education and that the Veteran’s service-connected knee disability kept him from working in physically laden jobs. The counseling psychologist/vocational rehabilitation counselor further found that the Veteran had not overcome his impairment to employability and that he did not possess marketable skills to gain suitable employment. As such, the Board finds that the Veteran’s lay statements regarding the circumstances surrounding his last employment and reasons for quitting are credible. The Board also finds that the medical documentation of record has provided credibility to the Veteran’s claim that his service-connected disabilities are a major barrier to employment. In this regard, the medical evidence of record reflects that the Veteran’s service-connected left knee disabilities resulted in functional impairments with prolonged sitting, standing, and walking. Specifically, the July 2012 VA knee examiner found that Veteran’s knee disability impacted his ability to work because the Veteran was required to walk and stand for his job but had to rest during left knee flare-ups. Additionally, the April 2016 VA examiner found that the Veteran’s left knee condition impacted his ability to perform occupational tasks because the Veteran had knee pain when working and with participation in activities of daily living, particularly with extended periods of standing and walking on concrete floors. The April 2016 VA examiner, however, noted that the Veteran did not have to take sick leave for his left knee. The September 2020 VA knee examiner also noted that the Veteran had not been able to work since 2015 due to his progressive disability. The evidence of record also shows that Veteran’s other service-connected disabilities impacted his ability to work. For example, the October 2010 audiology examiner found that the Veteran’s hearing loss impacted his occupation because the Veteran had difficulties with hearing speech, which made working with customers occasionally more difficult. The evidence also shows that his service-connected major depressive disorder and generalized anxiety disorder impacted his ability to work. In this regard, the July 2012 VA mental disorders examiner found that the Veteran’s psychiatric disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. During the July 2017 VA psychiatric examination, the Veteran further reported that he noticed he was becoming hostile with employees and customers at his place of last employment. In light of the foregoing, and given the Veteran’s educational and vocational background, the evidence of record suggests that from October 27, 2015, to May 4, 2017 (the effective date of the Veteran’s current TDIU), the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment. As noted above, for this period of time, the Veteran’s ability to perform physical work was severely impaired due to his service-connected orthopedic disabilities as the Veteran could not sit, stand, or walk for prolonged periods of time. To the degree that the Veteran would be able to perform less physical work (despite his limited ability to sit for prolonged periods of time due to his left knee disabilities and given his employment history consisting primarily of physical labor), the Board finds that from a practical standpoint, the Veteran would be too limited to perform such occupations due to his service-connected psychiatric disorder, which was also assessed as manifesting in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Accordingly, the totality of the Veteran’s service-connected disabilities indicate that the Veteran would be significantly impeded in workplace productivity. While no individual service-connected disability may have rendered the Veteran unemployable by itself, the evidence suggests that when considering the service-connected disabilities together, the evidence is at least in equipoise as to whether the Veteran would be unable to maintain gainful employment from October 27, 2015. Therefore, the Board finds that entitlement to a TDIU is warranted from October 27, 2015, the date the evidence shows the Veteran last worked full time, to May 4, 2017. However, the Board finds that for the period prior to October 27, 2015, entitlement to a TDIU, as well as referral for extraschedular consideration for the appeal period where the Veteran does not meet the schedular criteria, is not warranted. The Board emphasizes that the Veteran has never explicitly alleged that he has been unable to secure and follow substantially gainful employment as a result of his service-connected disabilities for the appeal period prior to October 27, 2015, and there is otherwise no evidence implying such. In this regard, for the appeal period prior to October 27, 2015, the evidence shows that the Veteran worked full time for nearly the entire appeal period. Based on his reported income, and the lack of an indication that he was working in a protected environment, the Board finds that such employment is more than marginal in nature. As the Veteran had been gainfully employed in the same position from January 2009, and was able to find work in the same field prior to that date, the Board finds that at no point during the period on appeal prior to October 27, 2015, did the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Indeed, this evidence indicates that the Veteran was capable of maintaining his employment. Although the Veteran experienced occupational impairments as due to his service-connected disabilities, the Veteran was able to perform the physical and mental activities required by his occupation as he obtained and maintained his employment for over five years. To the extent that his service-connected disabilities affected his employability, the schedular ratings assigned for his various disabilities compensate him for such impairment. Indeed, disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. Thus, for the period prior to October 27, 2015, entitlement to a TDIU and referral for consideration of a TDIU on an extraschedular basis is not warranted. In sum, entitlement to a TDIU is granted from October 27, 2015. However, entitlement to a TDIU is denied for the appeal period prior to October 27, 2015, as the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.