Citation Nr: 21004035 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 13-02 481 DATE: January 25, 2021 ORDER 1. A 60 percent rating is granted for the Veteran’s post-total knee replacement (TKR) right knee disability from [the earlier effective date of] August 3, 2012, subject to the regulations governing payment of monetary awards; entitlement to ratings for the disability in excess of 30 percent prior to August 3, 2012 and in excess of 60 percent from that date is denied. 2. Entitlement to a rating in excess of 10 percent for hypertension is denied. 3. Entitlement to a rating in excess of 10 percent for tinnitus is denied. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from [the earlier effective date of] August 3, 2012, subject to the regulations governing payment of monetary awards. REMANDED 5. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. 6. Entitlement to an extraschedular TDIU rating prior to August 3, 2012 is remanded. FINDINGS OF FACT 1. Prior to August 3, 2012, the Veteran’s post-TKR right knee disability was manifested by complaints of pain, stiffness, swelling, edema, and buckling (once or twice per month); extension was normal, the knee was not ankylosed, nonunion of tibia or fibula was not shown, and a preponderance of the evidence is against a finding that there were chronic residuals consisting of severe painful motion and weakness; from that date the right knee disability is reasonably shown to have been manifested by chronic residuals consisting of severe painful motion and weakness. 2. The Veteran’s hypertension is not shown to have been manifested by diastolic pressures predominantly 110 or more or systolic pressures predominantly 200 or more. 3. Throughout, the Veteran’s tinnitus has been rated 10 percent (the maximum schedular rating for tinnitus); factors warranting an extraschedular rating are not shown. 4. From August 3, 2012, the Veteran’s service connected disabilities: right knee TKR (rated 60 percent), hypertension (rated 10 percent), tinnitus (rated 10 percent), lymphedema (rated 10 percent), and hearing loss (rated 0 percent) are reasonably shown to have rendered him unable to maintain substantially gainful employment. CONCLUSIONS OF LAW 1. A 60 percent (but not higher) rating is warranted for post-TKR right knee disability from August 3, 2012; prior to that date a rating in excess of 30 percent was not warranted. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§4.3, 4.7, 4.68, 4.71a; Diagnostic Code (Codes) 5055, 5256, 5261, 5262. 2. A rating in excess of 10 percent for hypertension is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Code 7101. 3. A rating in excess of 10 percent for tinnitus is not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1, 4.87, Code 6260; Smith v. Nicholson, 19 Vet. App. 63 (2005) rev’d, 451 F.3d 1344 (Fed. Cir. 2006). 4. From August 3, 2012, the schedular criteria for a TDIU rating are met; a TDIU rating is warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1969 to February 1973 and from January 1974 to January 1977. These matters are before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and January 2019 rating decisions. An August 2017 Board decision denied service connection for a left knee disability, denied an increase in the 30 percent rating assigned for post-TKR right knee disability prior to January 27, 2014, and granted a 60 percent for the post-TKR right knee disability from January 27, 2014. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a May 2018 Joint Motion for Partial Remand (JMPR) by the parties. A May 2018 CAVC Order remanded the matter for compliance with the JMPR instructions. A December 2018 Board decision again denied an increase in the 30 percent rating for post-TKR right knee disability prior to January 27, 2014 and remanded the issue of entitlement to service connection for a left knee disability. The appellant appealed the Board’s decision to the CAVC, resulting in a May 2020 Memorandum Decision that set aside and remanded the December 2018 Board decision. The Board’s August 2017 decision found that entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) was raised by the record in the context of the claim for increase. An April 2020 rating decision granted a TDIU rating effective August 16, 2017, and a September 2020 rating decision granted a TDIU rating from the earlier effective date of January 27, 2014. Since the TDIU was raised as part of the post-TKR right knee disability claim for increase, the Board is required to address whether a TDIU rating was warranted throughout the period on appeal. As discussed below, the claim for increase was filed in December 2012, therefore the period for review begins one year prior, in December 2011. In November 2020, the Veteran requested higher level review for his claim of service connection for a left knee disability. In December 2020, VA confirmed that the left knee disability was withdrawn from the legacy system and would be considered under the Appeals Modernization Act (AMA). Therefore, service connection for a left knee disability will be addressed in a separate AMA decision. [A September 2020 rating decision granted service connection for right lower extremity lymphedema, and that matter is no longer before the Board.] Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. §§ 3.157, 3.400(o)(2). Consequently, the period for consideration (for hypertension, tinnitus, and right ear hearing loss) is from October 23, 2017 (one year prior to the October 23, 2018 date of claim) to the present. Additionally, the evaluation period for the claim pertaining to the rating for post-TKR right knee disability is from December 2011 (a year prior to the December 4, 2012 date of claim) to January 27, 2014 [the effective date for the 60 percent rating that was assigned] . When the appeal is from the initial rating assigned with a grant of service connection, (for left ear hearing loss which was granted in a January 2019 rating decision, and is now rated 10 percent for bilateral hearing loss from October 23, 2018) the severity of the disability during the entire period from the grant of service connection to the present is to be considered. “Staged” ratings may be assigned for distinct periods when different levels of impairment are shown. Fenderson v. West, 12 Vet. App. 119 (1999). 1. A 60 percent rating is granted for the Veteran’s post-TKR right knee disability from August 3, 2012; ratings for the disability in excess of 30 percent prior to August 3, 2012 and in excess of 60 percent from that date are denied. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R.§4.1; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). “Staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Post-TKR knee disability is rated under Code 5055. A 100 percent rating is to be assigned for 1 year following implantation of a prosthesis. Following expiration of the 1-year period, a 30 percent rating is the minimum rating to be assigned. A 60 percent [maximum schedular] rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Codes 5256 (for ankylosis), 5261 (for limitation of extension), or 5262 (for impairment of the tibia and fibula). 38C.F.R.§4.71a. A 100 percent schedular rating for post-TKR right knee disability was assigned for the Veteran’s right knee disability from March 30, 2010 through April 31, 2011 (prior to the period for consideration). The current 30 percent rating was assigned to follow the expiration of that 1-year period. Under Code 5256, a 30 percent rating is assigned for ankylosis of a knee at a favorable angle (in full extension), or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is assigned for ankylosis of a knee between 20 degrees and 45 degrees. A 60 percent rating is assigned for extremely unfavorable ankylosis of a knee (in flexion at 45 degrees or more). 38 C.F.R.§4.71a. Under Code 5261, limitation of extension of a leg warrants a 30 percent rating when limited at 20 degrees, a 40 percent rating when limited at 30 degrees, and a (maximum) 50 percent rating when limited at 45 degrees. 38 C.F.R.§4.71a. Under Code 5262, for impairment of the tibia and fibula, a 30 percent rating is assigned for malunion with marked knee or ankle disability, and a (maximum) 40 percent rating is assigned for nonunion with loose motion requiring a brace. 38C.F.R.§4.71a. Normal or full range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38C.F.R.§4.71, Plate II. Separate ratings may be assigned for compensable limitations of motion, instability, and dislocation of semilunar cartilage. VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59990 (2004). Ratings for extremities are also governed by 38 C.F.R.§4.68 (the amputation rule), which provides that the combined rating for disabilities of an extremity shall not exceed the rating for amputation of the extremity at the elective level, were amputation to be performed. Under Code 5162, amputation of a leg at the middle or lower third of the thigh is rated 60 percent. The next higher (80 percent) rating (under Code 5161) requires that the elective site of amputation be at the upper third of the thigh, one-third of the distance from perineum to the knee joint measured from the perineum. 38 C.F.R.§4.71a. In determining the degree of limitation of motion, the provisions of 38 U.S.C.§§4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R.§4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38C.F.R.§4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38C.F.R.§4.45. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38C.F.R.§4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C.§5107; 38C.F.R.§§3.102, 4.3. An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R.§§3.157, 3.400(o)(2). Consequently, the evaluation period for consideration here is from December 2011 (a year prior to the December 4, 2012 date of claim) to January 27, 2014. As noted above, the Veteran underwent right TKR surgery in March 2010; a 30 percent (minimum schedular) rating was assigned under Code 5055 from May 1, 2011. A November 4, 2011 VA clinical record notes regarding the Veteran’s right knee, “He has some pain in it off and on. It hurts at times, swells at times, sometimes it feels a little unstable.” The record notes diagnoses of fibromyalgia, multiple somatic complaints, type 2 diabetes, peripheral neuropathy in both legs, hyperlipidemia, and hypertension.” A November 18, 2011 VA clinical record notes a report of “some knee pain”; the extremity, severity, and frequency were not identified. A March 2012 VA rheumatology record notes that, “R[ight] tkr is starting to hurt.” A May 2012 VA treatment record notes the Veteran’s report that his right knee has been painful (but does not identify the nature/severity of impairment due to pain) since a right knee TKR in 2010. On examination, the surgical scar was well-healed; there was no erythema or drainage. The knee was “a little loose” with good range of motion which was smooth. X-rays showed no evidence of infection or loosening. The impression was painful right total knee arthroplasty. A July 2012 VA treatment record notes that the Veteran reported right knee pain. The knee was evaluated for evidence of loosening or infection, and the physician wrote, “There was no evidence of loosening or infection in the right total knee arthroplasty... The right total knee appears to be okay. His x-rays look good also.” The physician also noted that the Veteran “hurts all over” and was “having total body pain...Possibly he has some sort of generalized inflammatory polyarthritis.” An August 3, 2012 VA treatment record notes that Veteran’s report of 7/10 pain in his left shoulder, right elbow, both knees, and both ankles. He reported that his knees were “really hurting” because he ran out of Celebrex and muscle balm rub. He reported that he wore braces on both knees and ambulated with a walker. In a November 2012 statement, the Veteran reported limited range of motion, pain, and swelling in his knees; that he used a walker, cane, and a brace to help support his right knee, was unable to get into his bathtub and could only take showers; that he had fallen due to the right knee; and that he had difficulty walking, standing or sitting for any period of time. A November 2012 VA rheumatology record notes that the Veteran reported “Lately has lots of pain, has to walk with a walker.” On examination, the Veteran’s “knees [were] tender, but not red.” He described the knee pain as 7/10. The physician noted that he “will likely need tkr’s at some point, but he is not ready for it.” A December 11, 2012 “1-time basis” private physical therapy record notes complaints of bilateral knee pain, rated 8/10, and a report of a fall due to his left knee giving out. On examination, right knee active range of motion was extension to 0 degrees (full) and flexion to 95 degrees (with passive flexion to 115 degrees). The Veteran did not report pain or tenderness to palpation along the anterior joint, posterolateral joint, and posteromedial joint lines. The record notes “1=Complaint of pain” on the lateral joint line, medial joint line, and popliteal posse; palpation to the pes anserine resulted in “2=Pain with wincing.” A December 2012 private treatment record notes that on examination, the Veteran had painful limited motion of bilateral hips, knees, and ankles. He reported that he required assistance with activities of daily life (ADL’s) and a rollator for safe ambulation for a limited distance. A December 2012 private treatment record notes that the Veteran reported loss of motion and stiffness to a marked degree in both knees with pain at 8/10. He reported weakness in his hips, knees, and ankles bilaterally. The provider opined that the Veteran was unable to work due to injury because he could not balance on either leg, bilateral squat, climb a flight of stairs, or walk 1/2 mile. A February 2013 medical statement from Dr. R.L.J, the Veteran’s private TKR surgeon, notes that he was “doing very well” with his right TKR. However, the Veteran reported constant knee pain and that he used a rollator for ambulation. A May 2013 independent living assessment notes that the Veteran reported that he had great difficulty with stability, and had fallen several times. He related that he used a walker when ambulating around his house and community, wore a knee brace, and could only walk 150 feet before having to stop due to bilateral knee pain. He related that he could only drive short distances and that his wife drove him to appointments and elsewhere, as needed. A May 2013 VA treatment record notes that the appointment was a “follow up” for severe knee pain. The Veteran reported that he used a rollator and knee braces to walk and that his knees were painful at rest, with ambulation, and with the rollator. On examination, his knees were tender and somewhat lax. The assessment was advanced degenerative joint disease (DJD)/osteoarthritis of the knees with instability. The provider opined that the Veteran was unemployable because of the constellation of severe DJD and osteoarthritis, constant pain, and lack of mobility. A July 2013 VA treatment record notes that the Veteran ambulated with a roller walker, reported knees, ankles, and elbows pain of 8/10, and wore bilateral knee braces. An August 2013 VA pain assessment notes that the Veteran reported pain of 7/10 in the ball of his foot and knees that was chronic and ever present. An October 2013 VA treatment record notes the Veteran continued to use hinged knee braces for support as well as a rollator for ambulation. He indicated that he was unsteady in gait and station if he did not use assistive devices. The assessment was painful right TKR that has been unrelenting since surgery. On November 2013 VA knee examination, the Veteran reported right knee stiffness and edema that manifests when “he goes out to piddle in his garage, or walk his dog for short distance.” He also reported “pain in right knee episodically daily. He rates the pain, when present, as 7 on 1-10 pain scale.” He reported flare-ups several times per month with pain rated 9/10, with “some relief with sitting in recliner and using heating pad.” On examination, range of motion testing showed flexion to 105 degrees and extension to 0 degrees (normal), both without objective evidence of painful motion. Repetitive use testing did not result in additional limitation in range of motion or functional loss/impairment. Tenderness and pain to palpation were not noted. Muscle strength testing was normal 5/5, joint stability testing was normal, and there was no evidence of recurrent patellar subluxation/dislocation. The examiner noted that the Veteran had intermediate degrees of residual weakness, pain, or limitation of motion; functional impairment was not to the extent that he would be equally well served by an amputation with prosthesis; the right knee disability did not impact on his ability to work. Regular use of a walker was noted “due to bilateral knees and hips.” On January 27, 2014 VA knee examination, the Veteran reported that in the past year his right knee disability was manifested by stiffness, weakness, swelling, giving way once or twice per month, and daily popping noises; he denied locking. He reported flare-ups that limit his ability to walk, stand, kneel, and squat, but did not report their frequency or duration. Range of motion studies found flexion to 110 degrees (with objective evidence of painful motion at 100 degrees) and extension to 0 degrees (normal) (with objective evidence of painful motion at 5 degrees). Repetitive use testing did not result in additional limitation in range of motion, but the Veteran reported additional functional loss/impairment due to pain and swelling. Tenderness or pain on palpation was noted. Muscle strength testing was normal (5/5); there was no evidence of recurrent patellar subluxation or dislocation; however, joint stability testing showed anterior instability of 1+ (0-5 millimeters) and medial-lateral instability of 1+. The examiner indicated that the Veteran had chronic TKR residuals consisting of severe painful motion or weakness. The functional impairment was not to the extent that the Veteran would be equally well served by an amputation with prosthesis. The examiner opined that the Veteran’s bilateral knee disabilities prevented prolonged standing or walking employment, but that he was capable of sedentary employment. In an October 2018 statement, the Veteran’s attorney argued that the Veteran is entitled to a 60 percent rating throughout, citing to a November 2012 clinical record which noted “lots of pain” and a May 2013 clinical record which noted “severe” knee pain. He argued that the rating criteria (Code 5055) “is not based on the Veteran’s ability to move his knee, but rather on the pain he experiences when he does so.” In the May 2020 CAVC Memorandum Decision, CAVC noted that the Board’s errors included failure to address favorable evidence, failure to apply the law based on Tedesco and Petitti, failure to define “severe,” and failure to provide an adequate statement for favoring negative evidence over the other evidence of record. In a December 2020 statement, the Veteran’s attorney argued that the Veteran is entitled to a 60 percent rating throughout, citing to an August 2012 VA record that notes complaints of right knee pain with pain of 8/10, a November 2012 VA record noting “lots of pain” with pain noted as 7/10, a December 2012 physical therapy notes indicating pain at 8/10 and pain with wincing on palpation of the pes anserine and which noted the pain worsened to 10 out of 10, caused debility and which also noted marked weakness, a May 2013 VA treatment record that notes follow-up for severe knee pain and knee pain of 8/10, and a November 2013 examination which found daily episodes of pain at 7/10, with flare ups to 9/10 several times per month. The attorney also noted that VA considers pain rated at 7/10 or above to be severe. Citing to Defense and Veterans Pain Rating Scale, https://www.va.gov/PAINMANAGEMENT/docs/DVPRS_2slides_and_references.pdf. A review of the record found there is evidence suggesting that the criteria for a 60 percent rating for a post-TKR right knee disability have been met (or approximated), throughout, from August 3, 2012 [but not earlier]. The Veteran has, consistently in treatment records and on examination since August 2012, reported severe right knee pain of at least 7/10. An August 3, 2012 VA treatment record notes that hr reported 7/10 pain in both knees, a November 2012 VA rheumatology record notes that reported knee pain as 7/10, and a December 2012 private physical therapy record notes that he reported bilateral knee pain of 8/10. A May 2013 VA treatment record notes that the appointment was in “follow up” for severe knee pain and that the Veteran reported that he used a rollator and knee braces to walk and that his knees were painful at rest, with ambulation, and with the rollator. A July 2013 VA treatment record notes that he ambulated with a roller walker, reported knees, ankles, and elbows pain of 8/10, and wore bilateral knee braces, and an August 2013 VA pain assessment notes that he reported 7/10 pain in his knees that was chronic and ever present. On November 2013 VA knee examination, the Veteran reported right knee stiffness and edema that manifest when “he goes out to piddle in his garage, or walk his dog for short distance.” He also reported “pain in right knee episodically daily. He rates the pain, when present, as 7 on 1-10 pain scale.” He reported flare-ups several times per month with pain rated 9/10, with “some relief with sitting in recliner and using heating pad.” Resolving reasonable doubt in favor of the Veteran, a 60 percent rating is warranted for his post-TKR right knee disability throughout, from August 3, 2012. Prior to August 3, 2012, the Board finds that the preponderance of the competent medical evidence is against a finding that there was severe painful motion or weakness (warranting a rating in excess of 30 percent). In November 2011, the Veteran reported “some pain in it off and on.” In March 2012, he reported that the right knee was “starting to hurt.” A May 2012 VA treatment record notes that his report that his right knee had been painful (but not identifying the severity or related functional impairment) since the TKR in 2010. A July 2012 VA treatment record also notes that he reported right knee pain, but the level of pain was not identified. Accordingly, the Board finds that prior to August 3, 2012, the Veteran’s post-TKR right knee disability picture closely approximated the criteria for the 30 percent rating currently assigned, and that a 60 percent schedular rating under Code 5055 for severe painful motion or weakness is not warranted. The Board has considered whether the evidence warrants an intermediate rating (between 30 and 60 percent) based on combination of ratings under Codes 5256, 5261, or 5262, pursuant to Code 5055. It is not alleged, nor did any medical examination find, that the right knee was ankylosed. Consequently, a rating by analogy to Code 5256 is not warranted. Under Code 5261, a rating in excess of 30 percent (40 percent) is warranted when extension is limited at 30 degrees. However, no examination has found that the Veteran’s right knee extension was limited at 30 percent. Consequently, rating under Code 5261 would be of no benefit to the Veteran. Under Code 5262 a 40 percent (maximum) rating is warranted for nonunion of tibia/fibula with loose motion, requiring a brace. While the Veteran reported in multiple treatment records that he wears a right knee brace, no examination has found nonunion (or equivalent post-TKR pathology) requiring wearing of a brace. Accordingly, an intermediate (between 30 and 60 percent) rating by analogy to any (or combination of) schedular criteria specified for consideration was not warranted prior to August 3, 2012. 2. Entitlement to a rating in excess of 10 percent for hypertension is denied. Hypertensive vascular disease (hypertension and isolated systolic hypertension) warrants a 60 percent rating when diastolic pressure is predominantly 130 or more. A 40 percent rating is warranted when diastolic pressure is predominantly 120 or more. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. A 10 percent rating is warranted when diastolic pressure is predominantly 100 or more or; systolic pressure is predominantly 160 or more, or; as a minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continues medication. 38 C.F.R. § 4.104, Code 7101. An October 2017 private treatment record notes that the Veteran’s blood pressure was 140/72, that he was monitoring his blood pressure daily, and that systolic pressure had been averaging in the 150s. A December 2017 VA treatment record notes that a review of the Veteran’s November to December 2017 blood pressure readings found that the highest reading was 184/93, the lowest reading was 127/75, and the average reading was 156/80. An April 2018 VA treatment record notes that a review of the Veteran’s March to April 2018 blood pressure readings found that the highest reading was 184/105, the lowest reading was 152/79, and the average reading was 169/88. A May 2018 VA treatment record notes that a review of the Veteran’s April to May 2018 blood pressure readings found that the highest reading was 179/105, the lowest reading was 141/71, and the average reading was 161/85. A June 2018 private treatment record notes that the Veteran’s hypertension was controlled, and he was directed to continue to take Losartan, Hydralazine, Lasix, Terazosin, and Amlodipine. His blood pressure was 108/68. A November 2018 VA treatment record notes that a review of the Veteran’s October to November 2018 blood pressure readings found that the highest reading was 175/83, the lowest reading was 127/75, and the average reading was 152/79. On November 2018 VA hypertension examination, essential hypertension was diagnosed. The Veteran reported that his blood pressure fluctuated although he was taking his medication as prescribed. He took Terazosin, Furosemide, Amlodipine, Hydralazine, and Losartan. His current blood pressure readings were 138/80, 130/76, and 130/72. The examiner noted that cardiac examination showed that the Veteran’s heart had normal rate and rhythm, and there were no murmurs or carotid bruits. The examiner opined that the hypertension had no functional impact. A December 2018 VA treatment record notes a blood pressure reading of 155/83. A March 2019 VA treatment record notes that a review of the Veteran’s February to March 2019 blood pressure readings indicated that the highest reading was 182/93, the lowest reading was 140/75, and the average reading was 162/84. A July 2019 VA treatment record notes that a review of the Veteran’s June to July 2019 blood pressure readings indicated that the highest reading was 167/99, the lowest reading was 143/77, and the average reading was 157/83. A December 2019 VA treatment record notes that the Veteran’s blood pressure was well controlled, and his current blood pressure was 133/82. A February 2020 VA treatment record notes that the Veteran’s blood pressure was 157/71. A June 2020 VA treatment record notes that a review of the Veteran’s June 2020 blood pressure readings indicated that the highest reading was 174/86, the lowest reading was 137/59, and the average reading was 154/77. A September 2020 VA treatment record notes that a review of the Veteran’s September 2020 blood pressure readings indicated that the highest reading was 180/90, the lowest reading was 124/77, and the average reading was 159/84. Throughout the period on appeal, the Veteran’s blood pressure readings have fluctuated even with the use of medication as prescribed. The Board notes the criteria for rating hypertension specifically take into account the ameliorative effects of medication. Hence, the ameliorative effects of medications are not discounted, but are taken into consideration. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016); See Jones v. Shinseki, 26 Vet. App. 56 (2012). There is no evidence in the record that at any time under consideration the Veteran’s hypertension was manifested by a diastolic pressure of 110 or more, or systolic pressure of 200 or more, much less diastolic pressures predominantly 110 or more, or systolic pressures predominantly 200 or more. In the absence of such manifestations, a rating in excess of 10 percent for hypertension is not warranted. 3. Entitlement to a rating in excess of 10 percent for tinnitus is denied. Recurrent tinnitus is evaluated under Code 6260, which provides for a maximum rating of 10 percent. Code 6260, which was revised effective June 13, 2003 to clarify existing VA practice, also provides that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Code 6260, Note 2. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA’s longstanding interpretation of Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Citing United States Supreme Court precedent, the Federal Circuit explained that an agency’s interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Smith, 451 F.3d at 1350-51. Finding that there was a lack of evidence in the record suggesting that VA’s interpretation of Code 6260 was plainly erroneous or inconsistent with the regulations, the Federal Circuit concluded that VA’s interpretation of a single 10 percent rating being the maximum available for tinnitus was reasonable. An August 2018 private vocational assessment notes that the Veteran reported that he experienced loud ringing in his ears 70 percent of the time, and that it could be very distracting. On November 2018 VA hearing loss examination, it was noted that the Veteran’s tinnitus had some functional impact because he reported use of ocean waves sounds at home to drown out the ringing in his ears. The examiner did not opine that the Veteran was unemployable due to his tinnitus. An October 2019 VA treatment record notes that the Veteran reported worsening bilateral ringing in his ears; the provider indicated that possible exacerbating factors included hypertension, chronic pain, and arthritis. The Veteran’s tinnitus has been assigned the maximum schedular rating available for tinnitus under 38 C.F.R. § 4.87, Code 6260, and a higher schedular rating or separate 10 percent ratings for tinnitus of each ear are not warranted. The Board has considered whether referral of the claim for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321 (b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to [the Director of the Compensation Service] to determine whether an extraschedular rating is warranted. The Board finds that the first prong of the Thun analysis is not satisfied. The Veteran’s tinnitus is not shown (or alleged) to have manifestations or to cause impairment not encompassed by the schedular criteria. Hiss reports of ringing in the ears are the basis for the 10 percent rating for tinnitus. He has not identified factors warranting referral for extraschedular consideration, such as marked interference with employment. Furthermore, there is nothing exceptional or unusual about his tinnitus (masking is a commonly known ameliorative measure . See Long v. Wilkie, No. 16-1537 (Vet. App. December 30, 2020). Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not necessary. 4. Entitlement to a TDIU rating is granted from the (earlier effective date) of August 3, 2012. A TDIU rating may be assigned, where the schedular rating is less than total, when the Veteran is unable to maintain a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and work experience, but not age or impairment due to nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. As noted above, the Veteran’s claim for an increased rating for his right knee TKR on December 4, 2012, VA received. A TDIU claim is part and parcel of an increased rating claim when raised by the record or by the Veteran in connection with the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Consequently, the evaluation period for consideration here (for the right knee and TDIU) is from December 2011 (a year prior to the December 4, 2012 date of claim). An April 2020 rating decision granted TDIU effective August 16, 2017, and a September 2020 Decision Review Officer (DRO) decision granted an earlier effective date of January 27, 2014 for TDIU. In a November 2012 statement, the Veteran reported limited range of motion, pain, and swelling in his knees. He reported that he used a walker, cane, and a brace to help support his right knee, was unable to climb into or out of his bathtub and could only take showers, had fallen due to the right knee, and had difficulty walking, standing or sitting for any period of time. A December 2012 private treatment record notes that the Veteran reported loss of motion and stiffness to a marked degree in both knees with pain at 8/10. He reported weakness in his hips, knees, and ankles bilaterally. The provider opined that the Veteran was unable to work due to injury because he could not balance on either leg, bilateral squat, climb a flight of stairs, or walk 1/2 mile. A May 2013 VA treatment record notes that the provider opined that the Veteran was unemployable because of the constellation of severe DJD and osteoarthritis, constant pain, and lack of mobility. In an August 2018 private vocational opinion, the provider opined that considering the medical evidence and the Veteran’s self-report as it relates to his service-connected limitations, it is at least as likely as not that he has been unable to secure and follow substantially gainful employment to include sedentary unskilled employment based on his service-connected disabilities since 2004. She noted that the Veteran was last gainfully employed in 2004 when he retired from the postal service. After retirement he worked some odd jobs and as a delivery driver for NAPA in 2012. The demands of driving any distance were taxing on his service-connected right knee disability. He experienced increased pain while maintaining his right knee in a flexed posture while driving. Climbing into and out of a truck also caused an increase in pain and ultimately led to his quitting. In late 2012 he attempted to work again as a delivery driver but took too many unscheduled breaks due to his knee pain and was fired. He ceased seeking employment in 2013 because he determined that he could not “do it anymore.” The provider opined that the Veteran’s employment from 2005 to 2013 was not representative of substantially gainful employment. He only earned marginal income during those years, and he was unable to maintain those positions due to his service-connected disabilities. In the short-term positions, he often performed the job in such a way that employers would not generally tolerate (i.e. frequent unscheduled breaks and not meeting performance standards). The provider indicated that although sedentary work involves sitting most of the time, it may involve walking or standing for brief periods of time, and jobs are considered sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. She noted that the Veteran would be unable to meet these requirements due to his service-connected right knee disability because the disability limits his ability to sit longer than 20-30 minutes, walk any long distances, or stand on any surface longer than 5 minutes with use of an assistive device. Further, his severe pain due right knee disability frequently interfered with his ability to engage even in sedentary activity on a consistent basis because he Veteran required the ability to frequently alter position due to knee pain and stiffness, and ability to elevate his right knee, apply ice/heat, and utilize a TENS unit on his right knee multiple times a day, which would render him off task and necessitate breaks. As this decision grants a 60 percent rating for right knee TKR from August 3, 2012, from that date, the Veteran’s service-connected disabilities have included: right knee TKR (rated 60 percent), hypertension (rated 10 percent), tinnitus (rated 10 percent), lymphedema (rated 10 percent), and hearing loss (rated 0 percent); the combined rating is 70 percent; the schedular rating requirement for a TDIU rating has been met throughout from August 3, 2012. The evidence of record persuasively reasonably shows that the Veteran’s service-connected disabilities have been such that they preclude him from maintaining regular, substantially gainful employment from August 3, 2012. His right knee disability as described impacted adversely since then on his ability to maintain both less strenuous sedentary and manual work because he had extreme difficulty with prolonged standing, sitting, and walking. His hearing loss disability also impacts his ability to concentrate and engage in a workplace. A rehabilitation counselor and the Veteran’s other medical providers have described the limiting effects of the Veteran’s service-connected disabilities on his ability to work. It is reasonably shown that since August 3, 2012 the Veteran’s service-connected disabilities have resulted in functional limitations incompatible with regular substantially gainful employment. Accordingly, a TDIU rating is warranted from August 3, 2012. [Entitlement to an extraschedular TDIU rating prior to August 3, 2012, is discussed in the Remand below.] REASONS FOR REMAND 5. Entitlement to a rating in excess of 10 percent for bilateral hearing loss. An October 2019 VA treatment record notes that the Veteran requested another evaluation of his hearing acuity. He reported that wife and family complained about excessive TV volume even from another room. An audiological examination was conducted, but the audiometry findings are not included in the treatment records in the file. The provider noted that the Veteran’s right ear acuity was within normal limits through 500 Hz, mild through 2000 Hz, then fell to severe sensorineural hearing loss (SNHL). Left ear hearing acuity was within normal limits through 500 Hz, mild through 2000 Hz, then fell to moderately severe/severe SNHL. Puretone threshold readings in decibels in frequencies from 1000hz to 4000hz were not reported. Word recognition was 88 percent in the right ear and 92 percent in the left ear. The Board notes that review of complete audiometry findings (including puretone threshold study results) is necessary for proper evaluation of hearing loss disability. A remand for a copy of the complete report (or alternatively for another examination) is necessary. 6. Entitlement to an extraschedular TDIU rating prior to August 3, 2012. TDIU may be assigned on an extraschedular basis to veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16 (b) (“It is the established policy of the Department of Veterans Affairs 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.”) The Veteran’s service-connected disabilities prior to August 3, 2012 included right knee TKR (rated 30 percent), hypertension (rated 10 percent), tinnitus (rated 10 percent), lymphedema (rated 10 percent), and hearing loss (rated 0 percent). The combined disability rating was 40 percent from May 1, 2011 and 50 percent from August 23, 2011. Therefore, he did not meet the schedular rating requirements for TDIU prior to August 3, 2012. The Veteran submitted an August 2018 vocational assessment (as noted above) in which, based on a review of the evidence, a private vocational expert opined that it is at least as likely as not that the Veteran had been precluded from securing and following a substantially gainful occupation since he last worked full time for the post office in 2004 (i.e., even prior to August 3, 2012, when the schedular rating requirements were met), and that he could not even successfully engage in sedentary employment considering his work history, and the limitations due to his service-connected disabilities. The Board finds that the vocational expert’s opinion that the Veteran’s service connected disabilities impacted his ability to perform any type of occupational task since 2004, considered alongside the Veteran’s lay statements regarding his various physical limitations during that period, satisfies the 38 C.F.R. § 4.16(b) criteria for submission of the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Accordingly, the Board finds that a remand for such referral is required. Prior to the referral, there should be development to ensure that the record is complete regarding the extent and nature of all of his employment prior to August 3, 2012. The matters are REMANDED for the following: 1. Secure for the record a copy of the October 2019 complete VA audiometry report (including puretone audiometry reported in numerical values). If such evidence is unavailable, the reason must be explained for the record, and the Veteran must be so notified. 2. If, and only if, the complete October 2019 audiometry report (including puretone threshold testing results) is unavailable, arrange for a VA audiological examination of the Veteran (with audiometric studies) to ascertain the current severity of his bilateral hearing loss. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. In addition to reporting audiometry findings, the examiner should elicit from the Veteran an account of the impact his hearing loss has on daily activity functioning, and comment whether his account is consistent with the audiometry findings, as well as on the impact the level of hearing impairment shown by audiometry would be expected to have on occupational functioning. The examiner must include rationale with all opinions. 3. Then arrange for any further development necessary (in particular that the nature and extent of all of his employment prior to August 3, 2012 is fully documented in the record), prepare an appropriate summary (noting in particular the findings by the August 2018 vocational expert and the Veteran’s lay statements), and refer to the Director of Compensation for consideration, the matter of entitlement to an extraschedular TDIU rating under 38 C.F.R. § 4.16(b). 4. Re-adjudicate the claim for TDIU prior to August 3, 2012 (implementing the Compensation Director’s determination). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.