Citation Nr: 21003010 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 10-32 276 DATE: January 19, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected right knee recurrent lateral subluxation of the patella is denied. Entitlement to a disability rating in excess of 10 percent for service-connected right knee degenerative joint disease is denied. Entitlement to service connection for a low back disability is denied. Entitlement to an effective date earlier than January 13, 2016 for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected right knee recurrent lateral subluxation of the patella manifests with symptoms that are, at worst, comparable to slight subluxation of the patella. 2. The Veteran’s service-connected right knee degenerative joint disease manifests as limitation of motion due to pain, limitation of flexion to 60 degrees (at worst), and limitation of extension to 5 degrees (at worst). 3. The Veteran’s current low back disability is not secondary to his service-connected right knee disability, and is not otherwise related to an in-service injury or disease. 4. The Veteran’s service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation prior to January 13, 2016. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected right knee recurrent lateral subluxation of the patella have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected right knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260, and 5261. 3. The criteria for entitlement to service connection for a low back disability, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 4. The criteria for entitlement to an effective date earlier than January 13, 2016 for the award of a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from July 1999 to March 2000, with additional periods of ACDUTRA and inactive duty for training (INACDUTRA). These matters are before the Board on appeal from several rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided sworn testimony before the undersigned Veterans Law Judge at a January 2018 Board Hearing held via videoconference. The Veteran’s spouse was also present and gave testimony at that hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. In an October 2019 Board Decision, the above-referenced claims were remanded to the RO for further evidentiary development and readjudication. The RO has substantially complied with the Board’s remand instructions, so the Board may proceed to their merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The October 2019 Board Decision discussed the prior procedural history of the above-referenced claims, including how they came before the Board. That history will not be repeated here. The Veteran has not raised any specific issues with the duty to notify or duty to assist, or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to further discuss VA’s compliance with the duties to notify and assist. Increased Rating 1. Entitlement to a disability rating in excess of 10 percent for service-connected right knee recurrent lateral subluxation of the patella The Veteran has appealed the ratings for his right knee, but his representative conceded at the Board hearing that the appropriate ratings for the knee “are probably pretty close to the 10 percent rating” and the 10 percent ratings (for DJD and lateral subluxation of the patella) are likely supported by the record. See January 2018 Board Hearing Tr. at 3. For these reasons, the Veteran’s representative declined to elicit testimony on this issue at the Board hearing. The Veteran was originally service-connected for right knee recurrent lateral subluxation of the patella and degenerative joint disease of the right knee, which were separately rated. During the period on appeal (which begins September 2007), the Veteran has also been awarded service connection for degenerative joint disease with limitation of extension, but with a non-compensable rating. See November 2020 Rating Decision. This section deals solely with the right knee recurrent lateral subluxation of the patella. Because the limitation of extension could be evaluated with the degenerative joint disease of the right knee, the Board will consider all aspects of the right knee degenerative joint disease below, even though the limitation of extension has now been separately service-connected. The Veteran’s right knee recurrent subluxation of the patella (right patella disability) is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). However, the objective and subjective evidence of instability is all weighed like any evidence as to its probative value. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the right patella disability. The Board has carefully considered the Veteran’s reports about instability. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the subluxation symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate severity. An October 2008 VA examination indicated that the Veteran’s knee symptoms included pain (rated 7/10) and stiffness. The Veteran reported weekly flare-ups lasting several hours aggravated by kneeling down, prolonged standing, or navigating stairways. The examiner indicated that the flare-ups did not result in additional limitation of motion or functional impairment. The Veteran denied any episodes of dislocation or recurrent subluxation and he did not have inflammatory arthritis. The Veteran was unable to repeatedly squat due to pain. He had mild swelling in the peripatellar area of the right knee. His gait was not antalgic and there was no abnormal shoe wear. The Veteran did limp on the right side. There was no ankylosis or leg length discrepancy. The examiner measured ranges of motion as 0-100 degrees with pain in the last 40 degrees of flexion and pain in the last 20 degrees of extension, but with no functional loss. There was grinding and crepitance of the right knee. There were no instabilities of the knee. The examiner diagnosed right knee degenerative joint disease and right knee patellar subluxation. The examiner indicated that the Veteran had limitation of function due to pain, including pain on repeated use and pain during flare-ups, fatigue, weakness, lack of endurance, and incoordination. The February 2011 VA examination (joints) accurately recounted the history of the knee including the original injury and subsequent surgeries. The examiner indicated that the Veteran’s right knee symptoms included giving way, pain, stiffness, weakness, decreased speed of joint motion, repeated effusions, and swelling. The condition affected the motion of the joint and the Veteran reported severe weekly flare-ups lasting for hours with decreased ambulation and decreased range of motion during the flare-ups. The Veteran reported intermittent, but frequent, use of a cane, braces, and/or crutches. The Veteran’s gait was normal and there was no evidence of abnormal weight-bearing. The Veteran did not have inflammatory arthritis. There was crepitus, grinding, mild patellar dislocation/subluxation, and suprapatellar tenderness. There was not instability, mass behind the knee, a meniscus abnormality, or other knee abnormality. Range of motion of the right knee was 0 to 125 degrees (normal extension). There was objective evidence of pain following repetitive motion, but no additional limitation of range of motion after three repetitions. Joint stability and ligament testing were negative, but the Veteran had “mild subluxation and apprehension of right patella with medial stress.” The examiner diagnosed right knee patella subluxation and right knee DJD with associated knee pain. The examiner also noted the effects on usual daily activities, including preventing exercise and sports, severe effects on shopping, and moderate effects on chores, recreation, traveling, and driving. The August 2011 VA examination (joints) was conducted primarily to evaluate the left knee. However, the examiner measured right knee range of motion as 130 degrees of flexion and normal extension. There was objective evidence of pain following repetitive motion, but no additional limitations on range of motion after three repetitions. The October 2020 VA examination resulted in diagnoses of degenerative joint disease and recurrent lateral subluxation of the patella of the right knee. The Veteran reported flare-ups occurring regularly and subluxation that occurs about 3-4 times per month. The right knee flare-ups were described as moderate to severe and last from a couple of hours to a couple of days. The Veteran reported difficulty standing and walking for longer than seven minutes at a time. Range of motion was measured as 80 degrees flexion and 5 degrees of extension. Pain was noted on examination that caused functional loss. Both flexion and extension exhibited pain. There was evidence of pain with weight-bearing, but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was crepitus. The Veteran could complete repetitive use testing with at least three repetitions, but no additional loss of function. Pain and lack of endurance caused some functional loss. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. The examiner indicated that pain and lack of endurance significantly limited functional ability with repeated use over a period of time and during flare-ups. The additional loss after repeated use over time and during flare-ups was described as limitation to 60 degrees of flexion and 5 degrees of extension of the right knee. The Veteran had no additional factors (to include instability) contributing to disability. Muscle strength was 4/5. There was no muscle atrophy. The Veteran did not have ankylosis. He did have a history of slight recurrent subluxation, but no history of instability. Stability testing was all normal. The Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran did not have a meniscal condition. The examiner noted arthroscopic surgery in 2000 with residual signs or symptoms described as pain and stiffness. There were no other pertinent signs or symptoms. The Veteran reported the constant use of a knee brace and cane. There was objective evidence of pain on passive range of motion and on non-weight bearing testing. VA treatment records are consistent with the findings by the VA examiners. The record also includes private treatment records which also do not indicate worse symptoms and functional limitations than those found at the VA examinations. See, e.g., November 2014 Private Physician Letter (indicating full active range of motion of the lower extremities). As the above records indicate, the Veteran has had, at most, symptoms comparable to slight recurrent subluxation during the appeal period and no instability of the right knee. This equates to a 10 percent rating for slight recurrent subluxation of the right patella. The greater weight of the evidence is against any rating higher than 10 percent under DC 5257 for the right knee recurrent lateral subluxation of the patella. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Veteran does not have ankylosis (DC 5256), a meniscal condition (DCs 5258 and 5259), limitation of flexion to 45 degrees or less (DC 5260), limitation of extension to 10 degrees or more (DC 5261), any impairment of the tibia or fibula (DC 5262), or genu recurvatum (DC 5263). As already noted, the degenerative joint disease (DJD) and the limitations of motion will be discussed in more detail with respect to the request for a rating in excess of 10 percent for that impairment. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for right knee recurrent lateral subluxation of the patella. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a disability rating in excess of 10 percent for service-connected right knee degenerative joint disease As noted above, the Veteran has not provided argument or contentions to support a rating in excess of 10 percent for his service-connected degenerative joint disease (DJD) of the right knee. At the hearing, the Veteran’s representative implied that their position was that the evidence was likely consistent with the two currently assigned 10 percent ratings. The Veterans right knee DJD is rated under DC 5010-5260. Disabilities of the knee are rated under 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5256 to 5263. (Other codes, such as DC 5003 for rating arthritis, are also potentially applicable and have been considered.) Ankylosis (i.e. immobility) is rated under DC 5256. Under DC 5258, a 20 percent evaluation is assigned for semilunar, dislocated cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Impairment of the tibia and fibula is rated under DC 5262 and genu recurvatum is rated under DC 5263. As the Veteran does not have any of the conditions rated under DCs 5256, 5258, 5259, 5262, or 5263, these provisions are not applicable. There are special provisions for rating degenerative arthritis (to include osteoarthritis – DC 5010) under Diagnostic Code 5003. When there is painful motion of a major joint caused by degenerative arthritis that is detected on x-ray, such painful motion will be considered limited motion pursuant to 38 C.F.R. § 4.59. Painful motion is entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even if there is no actual limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Under DC 5260, a noncompensable evaluation is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Under DC 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. The pertinent evidence consists primarily of the VA examinations summarized above and the VA and private treatment records which do not indicate more severe symptoms or functional limitations than that reflected in the VA examinations. As an initial matter, the diagnosis of DJD together with evidence of limitation of motion due to pain warrants a maximum 10 percent rating for the right knee under DC 5010. Therefore, a higher rating is only warranted if the limitation of motion is sufficient to meet the criteria for a compensable rating under DC 5260 or DC 5261 or, alternatively, there is another or additional knee disability. As noted above, the Veteran does not have any of the conditions rated under DCs 5256, 5258, 5259, 5262, or 5263. The subluxation is already separately rated under DC 5257. With respect to limitation of motion, the Veteran’s flexion has always been measured as at least 80 degrees of flexion. The October 2020 VA examiner opined that, during flare-ups, the limitation was best approximated as 60 degrees of flexion. Even using this approximation as the worst limitations shown, this still constitutes a non-compensable degree of loss of flexion under DC 5261. While there is evidence of pain, the estimation of the loss of range of motion during flare-ups and with repetitive use constitutes the best evidence in the record regarding the maximum functional loss due to pain. Therefore, the Board finds that even considering pain, the Veteran does not meet the criteria for any compensable evaluation under DC 5261 and, so, neither a separate additional rating under DC 5261 nor a rating in excess of 10 percent under DC 5261 is not warranted. Similarly, the maximum limitation of extension was measured as a limitation to 5 degrees. The October 2020 VA examiner further opined that the estimated extension after repeated use over time and during flare-ups was also 5 degrees. Under DC 5260, limitation of extension to 5 degrees equates to a noncompensable rating. The record does not indicate that the Veteran has functional loss or other impairments that would more closely approximate a compensable rating under DC 5260. The Board acknowledges that the Veteran has painful motion, but again notes that the October 2020 VA examiner’s opinion regarding the range of motion that best approximates those functional limitations is the best evidence of the functional impact of the pain. The evidence is against awarding any separate compensable rating under DC 5260 in addition to the rating for arthritis under DC 5010 and is also against awarding any rating in excess of 10 percent under DC 5260. The greater weight of the evidence is against finding that the criteria for any rating in excess of 10 percent under DC 5010 have been met and, further, the Veteran’s right knee DJD does not manifest as symptoms or functional impairments that would warrant a higher or separate, additional rating under any other diagnostic code pertaining to the knee (particularly including, but not limited to, DC 5261). The greater weight of the evidence is against the claim. Entitlement to an evaluation in excess of 10 percent for service-connected right knee degenerative joint disease is denied. 3. Entitlement to service connection for a low back disability The Veteran contends that he injured his back during a period of ACDUTRA. See January 2018 Board Hearing Tr. at 28-35 (alleging back injuries during periods of ACDUTRA in 1999, 2006, and 2010). In the alternative, he argues that his back disability was caused or aggravated by his service-connected right knee disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Active military, naval, or air service includes active duty as well as any period of active duty training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. The claimant bears the burden of establishing Veteran status during periods of ACDUTRA or INACDUTRA. See, e.g., Donnellan v. Shinseki, 24 Vet. App. 167, 174-75 (2010). In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused or aggravated by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Direct Service Connection The question for the Board is whether the Veteran has a current disability that resulted from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. The Board concludes that, while the Veteran has a diagnosis of a current back disability, including degenerative arthritis of the spine with intervertebral disc syndrome (IVDS) and also described as lumbar spine degenerative joint disease (DJD) (facet arthropathy) and DDD L3-S1 with moderate bilateral L5 radiculopathies, the preponderance of the evidence is against finding that the current back disability began during active service, or is otherwise related to an in-service injury, event, or disease. In particular, the current back disability did not result from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. The Veteran alleges three back injuries during different periods of ACDUTRA, including in 1999, in 2006, and in 2010. See January 2018 Board Hearing Tr. at 28-35. He has also alleged that he has had a continuity of back pain since the initial, alleged 1999 back injury. Id. at 28 (alleging “chronic back pain since he left service in ’99, while active duty in Bosnia”). The record contains an initial line of duty determination which indicates an injury in November 1999 that was characterized by “right knee pain.” See December 1999 Memorandum. On his October 2002 VA 21-4138 in which he made his initial claim of entitlement to service connection for low back pain, the Veteran only claimed “low back pain secondary to S/C right knee.” See also February 2004 VA 21-4138 (claiming “back condition secondary to my S/C right knee”); October 2002 VA Progress Note (documenting complaints of chronic low back pain, chronic knee pain, and depression; noting history of knee trauma but not history of back trauma). At the April 2003 VA examination, the Veteran reported back pain “since Military Service.” He described an injury after “jumping off a five ton truck.” He told the examiner that he had several visits to sick call for knee and back pain. The Veteran further reported that he was told his low back pain had nothing to do with his back and he was not given treatment. An October 2003 VA Primary Care Note documents the Veteran’s complaint of “low back pain x 4 years onset after [right] knee surgery in Jan/2001…Patient fell off a truck in Bosnia and received trauma on his left knee and back.” A December 2003 VA Radiology Report notes the Veteran’s report of a three (3) year history of “chronic low back pain [with a history] of fall trauma 3 years ago after jumping off a truck in Bosnia.” The treatment record also notes the Veteran’s report of a recent history of frequent tripping and unsteady gait. At a November 2004 DRO Hearing, he testified that he “was active doing a peace mission in Bosnia” when he fell and “injured [his] back and knee.” Hearing Tr. at 2. He testified that he complained about the back and was told he had “spasms pains.” Hearing Tr. at 3. A February 2007 Statement of Medical Examination and Duty Status documents a left ankle injury incurred in the line of duty. The Veteran was treated for the left ankle pain for several weeks thereafter. See February 2007 Treatment Note (noting prior left ankle “inversion going upstairs at Fort Buchanan” and reporting pain in the [left] knee and [left] low back”). A February 2007 private hospital note documents complaints of left ankle pain. A March 2007 treatment record notes a diagnosis of lower back sprain and symptoms of being “tense and tender to palpation at upper and lower back”. See August 2007 Memorandum (regarding a line of duty investigation, but returning the matter due to “letter of lateness”). In early April 2010, the Veteran requested an evaluation due to left knee pain, left ankle pain, and low back pain that began two weeks prior. See April 2010 Progress Note. The Veteran denied “any new trauma” but reported a history of “injury to the same areas in 2007.” Id. The Veteran was treated with medication and put on a light duty profile. An April 2010 Individual Sick Slip from the next weekend indicated that the Veteran reported “feel[s] pain in lower back, left knee, and left ankle.” The next week, the Veteran returned for a follow-up evaluation and reported that he had drills over the weekend, was told by his “Unit” to go even though he had a light duty profile for 4 weeks, was injured at drill and left, and requested pay papers for one month while under treatment due to the recommendation that he avoid any activity that may result in reinjury. See April 2010 Progress Note. A September 2010 Statement of Medical Examination and Duty Status concluded that an April 2010 slip and fall in which the Veteran hit his left knee and his lower back on a tree root occurred while in the line of duty. An October 2010 MRI of the Veteran’s back revealed a disc protrusion at L4-L5. At a February 2011 VA Examination, the Veteran reported an incident in 2001 at Fort Gordon when he fell into a hole and injured his left ankle and back at the same time and a second incident in April 2010 at Fort Buchanan when he slipped while walking on a wet field injuring his lower back and left knee. At his Board hearing, the Veteran’s representative asked, “When did you first hurt your back in service?” See January 2018 Board Hearing Tr. at 31. The Veteran answered: “I got one for 2006. I remember the first one was, that was in 2006.” Id. He then testified that after the second injury to his back he was discharged, “but they never did a medical report.” Id. His representative again asked whether the 2006 incident was the first incident and whether it involved a tank. The Veteran responded that it was and that they were working with explosives and he hurt his back and knees and thigh. Id. at 32. Thereafter, he testified about the 2010 incident when he fell hitting his back and his left foot which got twisted. Id. The VLJ then asked: “So, you first hurt your back in 2006?” The Veteran replied: “Yes, ma’am.” Id. at 32. After further questioning about whether he had back issues since 1999, the Veteran testified that he fell in a hole during a snowfall at Fort Gordon in Georgia and injured his right knee and back. He then summarized: In ’99, that was the first accident in Georgia. Second one in 2006 from the moving explosive, and stuff like that. In 2010, when we’re at the twist. Board Hearing Tr. at 34. The Veteran underwent a February 2020 VA Examination at which he reported that he first injured his back on active duty at Fort Gordon, then was sent to VA for an evaluation of back pain while on orders at Fort Buchanan in Puerto Rico in 2002. He stated that it sometimes gets better, but he has had recurrent back pain since 2002 with the first diagnosis of a back condition in 2003. Direct Service Connection: 1999 Back Injury The Veteran’s reports regarding an alleged 1999 back injury during a period of ACDUTRA have been inconsistent and his service records are silent for a 1999 back injury. See, e.g., December 1999 Memorandum. His initial claim did not involve allegations of an in-service injury at all. See October 2002 VA 21-4138; February 2004 VA 21-4138. However, during the development of the claim, he alleged that he injured himself while jumping off a truck while serving in Bosnia on several occasions. As noted in the April 2009 Board Decision that ultimately denied that initial claim, the Veteran’s DD Form 214 indicated that he had no foreign service during his ACDUTRA from July 1999 to March 2000. After that denial, the Veteran refiled his claim. At his February 2011 VA Examination, he stated that the initial back injury occurred at Fort Gordon, Georgia. But he reported to the private physician that he injured his back when jumping from a truck in Bosnia and received treatment. See November 2014 Private Physician Letter. More recently, as discussed, at his Board hearing, he related a story of running in the snow at Fort Gordon in Georgia and falling in a hole. See January 2018 Board Hearing Tr. at 32-34. The Veteran’s reports of the 1999 incident are inconsistent in several ways. Sometimes they only mention a knee injury when it would be expected that he would also mention back pain. He initially claimed his back pain started after knee surgery in 2000. Then he claimed the back injury occurred while jumping off a truck while in Bosnia in 1999. Later, he claims the injury was a slip-and-fall injury in the snow, in Georgia, in November 1999. The Veteran is simply not a reliable historian. Moreover, if he had injured his back, it would be expected that the medical records documenting the 1999 incident and a knee injury would also document complaints of back pain. However, the available, contemporaneous records make no mention of back pain. The Board finds that the most probative evidence is against the Veteran’s allegation that he injured his back during a period of ACDUTRA in 1999. Such an injury is not factually shown in the service records, is not shown in the documentation of a 1999 knee injury, and the Veteran’s allegations of such are not credible due to inconsistencies described above. The Board concludes there is no persuasive evidence a back injury occurred during a period of ACDUTRA in 1999. For this reason, the private physician statements that suggest a link between the later back disability and the 1999 incident are entitled to no probative weight. Direct Service Connection: 2002 Back Injury At his February 2020 VA examination, the Veteran claimed that he had back pain “while on orders at Fort Buchanan in [Puerto Rico] in 2002.” His VA records document his complaints of back pain in 2002 and 2003, but the evidence of record is against finding that he had a back disease or injury incurred or aggravated in the line of duty in 2002. The treatment records reflect treatment outside the military at the VA hospital. See, e.g., October 2002 VA Progress Note (noting that he had recently moved from Orland to Puerto Rico). His service records do not indicate any ACDUTRA or INACDUTRA during this period, much less that he had a back disease or injury incurred or aggravated at that time. His military personnel records document that he was transferred within his unit in Orlando, Florida, effective January 2003. He was first transferred to Puerto Rico in March 2003. See March 2003 Reassignment Orders (“You are reassigned in the Reserve Components as shown below”; noting assignment to San Juan, Puerto Rico). This suggests that the Veteran had not been reassigned to Puerto Rico prior to March 2003, and there are no orders showing he performed duty in Puerto Rico (whether ACDUTRA or INACDUTRA) in 2002. The Veteran indicated at the February 2020 VA examination that he would produce evidence that he was performing ACDUTRA or INACDUTRA in 2002 when the initial back complaints were documented, but the record does not reflect any military personnel records, service treatment records, or other indication that the Veteran was on ACDUTRA or INACDUTRA in Puerto Rico in October 2002. The greater weight of the evidence is against finding that the Veteran’s 2002 onset of back pain occurred while he was on ACDUTRA or INACDUTRA. Direct Service Connection: 2006/2007 Back Injury The Veteran next claims that he had a back injury in 2006 (or 2007). Again, his testimony is inconsistent regarding when the alleged incident happened and whether it initially involved his back. The contemporaneous treatment records document an initial left ankle injury without mention of back pain. Shortly thereafter, the Veteran reported pain in the back and knee as well as the left ankle pain. He was ultimately diagnosed with a lower back sprain. The evidence does not establish that the Veteran injured his back during a period of ACUTRA. Rather, he injured his left ankle during the period of ACDUTRA and, then, subsequently, his back began hurting. Importantly, he had a prior, documented back problem that began in or around October 2002. See October 2003 VA Primary Care Note (documenting low back pain); December 2003 VA Radiology Report; February 2020 VA Examination (opining that the condition had onset in or around October 2002). The 2020 VA examiner opined that the back condition had onset in 2002 and did not worsen from 2002 through the February 2020 VA examination beyond the natural progression of the condition. Therefore, the greater weight of the evidence is against finding that the Veteran’s current back disability was incurred in 2006 or 2007 or that the 2007 ankle injury caused or aggravated the Veteran’s back disability beyond its natural progression. Direct Service Connection: 2010 Back Injury The Veteran has a documented April 2010 back injury. Obviously, such an injury could not cause the back disability, as that condition onset in 2002. The only competent opinion regarding whether that injury aggravated the 2002 back disability are the opinions of the April 2011 VA examiner and the February 2020 VA examiner. The April 2011 VA examiner opined that the Veteran’s back disability “was not aggravated by an accident suffered while in service [in] 2010 when he slipped and fell backwards and hit his back on a tree root while walking on a pee wee field (track) at Fort Buchanan.” The examiner explained, after comparing diagnostic imaging studies from December 2003 and October 2010, there is no objective evidence of aggravation or worsening of the back disability by comparison of the MRIs and physical examination. See April 2011 VA Examination. The February 2020 VA examiner, as indicated above, noted that VA records “document[] onset of back pain requiring x-ray on 16 Oct 2002 and establishing a chronic LBP condition with onset at that time.” The examiner opined that the current back disability, as evaluated via diagnostic imaging, “is consistent with the natural progression of his documented chronic LBP condition in Oct 2002.” See February 2020 VA Examination. While the Veteran also offers his opinion on the issue, the record does not reflect that he has any medical education, training, or specialized knowledge. His opinion regarding the correct diagnosis of his back disability (in 2002, 2010, and/or 2020) is not competent evidence, nor is his opinion regarding the etiology of observable symptoms in 2002, 2010, or during the appeal period. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). Therefore, in evaluating the Veteran’s claims, the Board will rely on the competent medical evidence of record. The most probative evidence regarding whether the 2010 injury exacerbated his back condition are the April 2011 VA examiner’s opinion and the February 2020 VA examiner’s opinion. The greater weight of the evidence is against finding that the current back disability was incurred in 2010 or that the documented 2010 acute back injury caused or aggravated the Veteran’s back disability beyond its natural progression. Direct Service Connection: Chronicity of Symptomatology Briefly, the above factual findings weigh heavily against the Veteran’s claim, but the Veteran’s allegations that he has had continuous back pain since 1999 merit a brief discussion. First, the greater weight of the evidence is against finding that the Veteran had a back injury in 1999 or subjective symptoms of back pain in 1999. Rather, the Board finds his report in an October 2003 treatment record that he first began experiencing back pain after his knee surgery, and thus well after the 1999 right knee injury, to be more consistent with the other evidence of record. Therefore, there is no continuity from 1999 to 2002. Moreover, after the initial diagnosis in 2002, the question is not whether the Veteran had back pain, but whether the 2002 back condition was aggravated beyond its natural progression by an injury or disease during a subsequent period of ACDUTRA or an injury during a subsequent period of INACDUTRA. Alternatively, if there was a new back injury or disease distinct from the 2002 back disability, symptoms of that disability might be relevant. But in this case, the symptoms are pain and functional limitations associated with pain that, reportedly, has been on and off since the 2002 and 2003 diagnoses. See February 2020 VA Examination. Finally, as to the private physician letter, the physician merely documented the Veteran’s report, rather than providing his own medical opinion. See November 2014 Private Physician Letter (“He states that has back pain since 1999 while in active duty in Bosnia. His complaints were reported and he received treatment…He also had right knee arthroscopy due to patellar condition in year 2000 and claims that this further aggravated his back pain.”); LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (lay statements “simply…recorded by a medical examiner” do not constitute “competent medical evidence”). For these reasons, direct service connection based on continuity of symptomatology is not warranted. Secondary Service Connection The Veteran’s alternative contention is that his current back disability has been caused or aggravated by his service-connected right knee disability. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability. The Board concludes that, while the Veteran has a current back disability consisting of lumbar spine DJD (facet arthropathy) and DDD L3-S1, per imaging, with moderate bilateral L5 radiculopathies as well as lumbar small disc protrusion L4-L5, the preponderance of the evidence is against finding that the Veteran’s current back disability is proximately due to or the result of, or aggravated beyond its natural progression by, a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The April 2003 VA examination contains a diagnosis of mechanical low back pain. The examiner at that time opined that “[t]here is no evidence of low back pain caused by right knee condition on today’s evaluation.” As noted above, the Veteran was diagnosed with suspected muscle spasms in October 2002 and, after diagnostic imaging, with mild degeneration at L4-5 with the right paracentral disc herniation. See December 2003 VA Radiology Report. The Board assigns the April 2003 VA examiner’s opinion no probative weight because the diagnosis of the current disability is different from the diagnosis underlying the examiner’s opinion. The February 2011 VA examiner opined that the Veteran’s right knee disability “is not likely the cause of [the Veteran’s] lumbar small disc protrusion L4-L5”. The examiner explained that the right knee was stable with only mild subluxation, that the gait pattern “does not likely contribute to his lower back condition”, and the Veteran had not had any additional patella dislocations since the 2001 surgery. See February 2011 VA Examination. The opinion is based on an accurate history and contains an adequate rationale, so is entitled to probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“most of the probative value of a medical opinion comes from its reasoning”); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion…must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The February 2020 VA examiner provided an additional, updated opinion. “It is less likely as not that the Veteran’s lumbar spine DJD (facet arthropathy) and DDD L3-S1, per imaging, with moderate bilateral L5 radiculopathies is caused or aggravated to any degree by his SC right knee condition.” The examiner explained that the current medical literature does not support a cause and effect relationship between knee joint and spine disease not incurred in the same traumatic event or as a result from an altered gait mechanic of the severity and longevity of that documented in this particular Veteran. See February 2020 VA Examination. The opinion is based on an accurate history and contains a convincing rationale. The opinion warrants significant probative value. Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. The record also contains a private opinion letter that suggests possible aggravation. However, the private physician stated that the Veteran “claims that this further aggravated his back pain.” See November 2014 Private Physician Letter. As the statement makes clear, the physician was merely reporting the Veteran’s belief rather than stating an opinion of her own. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Veteran believes that his back disability was aggravated beyond its natural progression by a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, the pathology of spine disabilities, and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the February 2011 VA examiner’s and February 2020 VA examiner’s negative opinions on secondary service connection. Conclusion The greater weight of the evidence is against finding that the Veteran’s current back disability resulted from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. Moreover, the greater weight of the evidence is against finding that the Veteran’s back disability was caused or has been aggravated by his service-connected right knee disability as alleged by the Veteran. For all of these reasons, the greater weight of the evidence is against the Veteran’s claim. Entitlement to service connection for a back disability is denied. 4. Entitlement to an effective date earlier than January 13, 2016 for the award of a TDIU The Veteran has been awarded a total disability rating based on individual unemployability (TDIU) effective January 13, 2016. He seeks entitlement to a TDIU prior to that date. As discussed in the October 2019 Board Decision and Remand, the issue of TDIU was raised in connection with the increased rating knee claims on appeal, so the period at issue extends from September 2008 (the date of his claims for increased ratings for his right knee) to January 13, 2016. While the issue is stated as entitlement to an effective date earlier than January 13, 2016, the factual and legal issues necessary to the determination are whether he meets the criteria for a TDIU. The fact that he had a pending claim during this period is not disputed. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that a grant of TDIU for a portion of the appeal period does not bifurcate the appeal and, therefore, is considered a partial grant of the benefit sought). A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). In this case, during the period at issue, the Veteran had a combined 60 percent rating based on the service-connected conditions of dysthymic disorder (30 percent), left ankle (20 percent), right knee DJD (10 percent), and right patellar subluxation (10 percent). These disabilities do not meet the criteria to be considered a single disability rated at 60 percent and, so, do not meet the criteria for a schedular TDIU. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. The determination of a referral (if the schedular requirement is not met) is dependent on analysis of “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. 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)). The evidence is inconsistent as to when the Veteran last worked. On the October 2016 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), he reported he last worked in April 2010. However, it was also noted he had worked as an automotive technician between 2005 and 2008, and at an October 2008 VA mental health examination, he stated he had lost his job as an auto mechanic due to physical disabilities. However, when applying for benefits with the Social Security Administration (SSA), he stated he worked 5 days per week for the military between 1998 and March or April 2010, in transportation/logistics for VIPs. See also February 2011 VA examination (indicating unemployment for roughly one year). It appears from his VA vocational rehabilitation documents that he was working at a military base in 2008, but in a civilian capacity, as an automotive mechanic. A psychiatric evaluation done for SSA in 2014 by Dr. S.C. indicated he was a “stable” worker until 2010. However, his earnings statement from SSA shows earnings in 2009 were marginal in nature, with barely any earnings in 2010. Therefore, the Board will consider TDIU from 2009 to 2016. As for the period on appeal prior to 2009 (again, the increased rating knee claims on appeal were received in September 2008), the SSA earnings report shows gainful wages in 2008. The Veteran relies primarily on the finding of the Social Security Administration (SSA) that he was disabled for SSA benefits purposes as November 4, 2012. See January 2018 Board Hearing Tr. at 3-4; July 2020 Brief on TDIU. Importantly, SSA determinations are not binding on the Board, and it is the duty of the Board to assess the credibility and weight to be given such evidence. See Washington v. Derwinski, 1 Vet. App. 459, 465-66 (1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (finding that SSA determinations should be given appropriate consideration and weight in determining to award or deny an appellant TDIU). The initial SSA determination was that the Veteran’s primary diagnosis was a back disorder and his secondary diagnosis was affective disorder. See September 2011 Disability Determination and Transmittal (finding that the claimant was not disabled). The Veteran appealed the initial denial. A January 2017 SSA Decision by an administrative law judge (ALJ) found that the Veteran was disabled for SSA purposes since November 4, 2012. In discussing the reasons for the determination, the ALJ concluded that he need not “delve in detail into physical condition as mental condition suffices for a favorable [decision.]” The ALJ placed emphasis, in particular, on the opinion of Dr. R.F. who diagnosed the Veteran with major depressive disorder and concluded that the Veteran’s occupational functioning was markedly limited as of November 4, 2012. The October 2019 Board Decision and Remand exhaustively discussed the evidence regarding the symptoms and functional limitations caused by the Veteran’s service-connected psychiatric disability and made a determination that, prior to January 13, 2016, “the Veteran’s psychiatric symptoms were mild in severity” and warranted a 30 percent rating under the rating schedule. The 30 percent rating assigned for the period prior to January 13, 2016, is met where the psychiatric disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 38 C.F.R. § 4.130. Thus, the Board has previously concluded that, prior to January 13, 2016, the Veteran’s psychiatric disability caused only occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran did not appeal this determination, so it became final. The Board incorporates and adopts the analysis contained in the October 2019 Board Decision and Remand regarding the overall impairments caused by the Veteran’s psychiatric disability as if set forth herein. With that level of impairment, the Veteran’s psychiatric disability alone would not render him unable to obtain or maintain gainful employment. The Veteran’s occupational history is auto mechanic, as well as transportation/logistics in the military for several years. As to his physical disabilities, the Board notes that the Veteran’s right knee disabilities have been rated 10 percent disabling since 2001, subsequent to the right knee surgery, and the Veteran was, in fact, able to obtain and maintain gainful employment for years afterwards with the functional limitations of his knee. Moreover, the severity of the Veteran’s service-connected right knee has been discussed above and involves limitation of motion that would be noncompensable if evaluated under DC 5260 or 5261 and only slight recurrent subluxation of the patella. The Board acknowledges the pain associated with the right knee disability and the functional limitations due to these manifestations, but finds that the right knee disability had an impact on the Veteran’s occupational functioning during the time under consideration that is commensurate with the combined 20 percent rating, but is not of such severity as to prevent him from obtaining or maintaining employment. Similarly, the left ankle disability has been rated 20 percent disabling since September 2008. While this disability, particularly when combined with the right knee disability, would arguably limit the Veteran’s ability to ambulate or stand for long periods, it does not preclude even physical labor that primarily involves upper body strength, such as working as a mechanic, and does not preclude sedentary employment (e.g., employment performed primarily at a desk or sitting down and not requiring significant walking, bending, squatting, or lifting). The Veteran’s physical limitations are relatively mild and, and there is no persuasive evidence he could not continue working, from a physical limitations perspective, due to the right knee and left ankle conditions throughout the period prior to January 13, 2016. These conditions would not preclude the sort of employment for which the Veteran was suited by education, training, and experience. In fact, although the Veteran did mention these conditions, at times, when discussing why he stopped working, he more often told clinicians it was because of his non-service-connected back disability. As to education, the record establishes that the Veteran had a four year college degree in electronics. See September 2014 Private Psychiatric Evaluation (noting for education: “BS – Electronics”); see also February 2011 Private Psychiatric Evaluation (noting for education: “BA”); SSA Disability Report (noting the Veteran reported four or more years of college with completion in 2007); but see October 2016 VA Form 21-8940 (indicating two years of college). Given at least two years of college and significant training in a logistics capacity during service, the record establishes that the Veteran has the education and training to perform physical labor that primarily involves manipulation of objects with the upper body or, alternatively, occupations that are primarily sedentary but utilize the Veteran’s college education or his knowledge and experience as an automotive technician (e.g., working in an automotive parts store) or in logistics. The fact that the Veteran’s physical disabilities affect only his lower extremities and that his psychiatric disability only occasionally resulted in occupational impairment (as discussed above), weighs heavily in favor of finding that his education and work experience were sufficient to allow him to obtain and maintain gainful employment despite his service-connected disabilities. The Veteran became unemployed in 2010 after a physical injury. The Veteran has, at various times, alleged that his back disability caused him to leave his employment in 2010. At the February 2011 VA examination (joints), the Veteran reported that the reason for his unemployment was “aggravation of lower back condition” and that he had been unemployed for less than one year. He stated that his usual occupation was “security and transportation.” At his August 2011 VA examination (joints), he reported that he was unemployed because he was not able to get a job in his line of work due to his physical conditions. He listed his usual occupation as bodyguard. The timing of his unemployment coincides with reports of increased back pain in 2010 and his stated reason at the time he became unemployed was trouble with his back. Therefore, the greater weight of the evidence establishes that the Veteran’s unemployment beginning in 2010 was due to a non-service-connected condition. The Board therefore assigns no probative weight (either in favor of or against the claim) to the fact of his unemployment from April 2010 to January 2016. Overall, the greater weight of the evidence is against finding that the Veteran’s service-connected disabilities rendered him unable to obtain or maintain gainful employment prior to January 13, 2016. The Veteran did not meet the threshold criteria for a schedular TDIU during this period, so the evidence is against referring the matter to the Director, Compensation and Pension Service, for extra-schedular consideration. Accordingly, entitlement to a TDIU prior to January 13, 2016, is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kerry Hubers 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.