Citation Nr: 21073217 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-39 226 DATE: December 7, 2021 ORDER Entitlement to a rating in excess of 20 percent for a right scapula disability is denied. Entitlement to a rating in excess of 30 percent for a right leg disability, leg length discrepancy, is denied. Entitlement to a rating in excess of 10 percent for a right knee disability, limitation of flexion, is denied. Entitlement to a compensable rating for a right knee disability, limitation of extension, is denied. REMANDED Entitlement to a rating in excess of 10 percent for a traumatic brain injury is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 3, 2020 is remanded. FINDINGS OF FACT 1. The evidence indicates that the Veteran's right scapula disability manifested in limitation in motion of the arm at shoulder level and greater than 45 degrees. 2. The evidence indicates that the Veteran's right leg disability length discrepancy is 4 cm throughout the appeal period. 3. The evidence indicates that the Veteran right knee disability manifested in arthritis with limitation of flexion to, at worst, 115 degrees with painful motion. 4. The evidence indicates that the Veteran right knee disability manifested in limitation of extension to, at worst, 5 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a right scapula disability have not been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.27, 4.69, 4.71a, Diagnostic Codes 5003, 5010, 5201 (2020); Diagnostic Code 5201 (2021). 2. The criteria for a rating in excess of 30 percent for a right leg disability, leg length discrepancy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5275. 3. The criteria for a rating in excess of 10 percent for a right knee disability, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260, 5258-5263 (2020), 5257 (2020), (2021). 4. The criteria for a compensable rating for a right knee disability, limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260, 5258-5263 (2020), 5257 (2020), (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from August 1973 to May 1974. In September 2019, the Board remanded the appeal for further development. INCREASED RATING 1. A rating in excess of 20 percent for a right scapula disability The Veteran contends that his right scapula fracture is such that a noninitial rating in excess of 20 percent is warranted. The Veteran currently has a rating of 20 percent for his right scapula disability under Diagnostic Code 5201-5010. The Board notes that hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.71a. 38 C.F.R. §§ 4.20, 4.27. Diagnostic Code 5201 provides ratings for limitation of motion of the arm. The rating criteria for evaluating disabilities of the shoulder, distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. As the record establishes that the Veteran's right shoulder is dominant, the criteria for rating disabilities of the major extremity are for application. Diagnostic Code 5201 was substantially revised in February 2021. Under the regulations in effect prior to 2021, under Diagnostic Code 5201, pertaining to the major extremity, a 20 percent rating is warranted for limitation of motion of the arm at shoulder level. See 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2020). A 30 percent rating is warranted for limitation of motion of the arm midway between the side and shoulder level. Id. A maximum 40 percent rating is warranted for limitation of motion of the arm to 25 degrees from the side. Id. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Under the revised regulations, a 20 percent rating is warranted for limitation of motion of the arm at shoulder level (flexion and/or abduction limited at 90 degrees). See 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2021). A 30 percent rating is warranted for limitation of motion of the arm midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees). Id. A maximum 40 percent rating is warranted for limitation of motion of the arm to 25 degrees from the side. Id. Diagnostic Code 5010 provides for rating traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 directs VA to rate the disability on the basis of limitation of motion pursuant to an appropriate diagnostic code for the specific joint involved. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board notes that, under the revised regulations, Diagnostic Code 5003 no longer includes traumatic arthritis in its contemplation; however, as this revision does not apply in this case, the revised regulation for Diagnostic Code 5003 is inapplicable. Turning to the evidence, in a June 2016 VA examination, the Veteran reported intermittent pain and difficulty sleeping on the affected side. The Veteran reported that every morning, he uses his left arm to assist his right arm when reaching for high objects or when pouring coffee. The Veteran stated that he was able to lift five pounds overhead and is most comfortable working from waist height. The Veteran further reported more pain with repeated use. The examiner stated that the records documented that since the Veteran's last examination, he received prednisone in December 2012 for right shoulder pain. The examiner noted that imaging studies showed stable degenerative joint disease. The examiner stated that the Veteran did not report flare-ups, but he did note functional loss or impairment. The examiner reported abnormal shoulder range of motion as the following: flexion at 0 to 90 degrees, abduction at 0 to 75 degrees, external rotation at 0 to 20 degrees and internal rotation at 0 to 60 degrees. The examiner stated that range of motion itself did not contribute to functional loss. The examiner reported that pain was noted on examination of flexion and abduction, but it did not result in functional loss. The examiner went on to state that there is objective evidence of localized tenderness at the superior and posterior. The examiner reported that there was no additional functional loss of range of motion after three repetitions. The examiner noted that the Veteran was not examined immediately after repetitive use over time. The examiner stated that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner reported that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted that the Veteran had additional contributing factors, stating that the Veteran had weakness due to multiple sclerosis, but his limited movement is related to his service-connected condition. The examiner stated that the Veteran had weakened muscle strength in forward flexion and abduction described as active movement against gravity. The examiner reiterated that this reduction in strength is related to the Veteran's multiple sclerosis. The examiner stated that the Veteran did not have muscle atrophy or ankylosis of the joint. The examiner reported rotation cuff condition suspects, noting positive result in three out of four tests. The examiner also noted that that the Veteran's right arm is visibly shaky when flexed past 75 degrees. The examiner reported that the Veteran occasionally used a cane as an assistive device for general weakness related to nonservice-connected multiple sclerosis. The examiner stated that imaging studies indicated right shoulder arthritis resultant from an old fracture that limits movement. The examiner described functional impact of the Veteran's shoulder disability on his ability to perform occupational tasks, noting that the Veteran should avoid frequent and/or prolonged overhead work and heavy lifting. The examiner remarked that even with generalized weakness related to nonservice-connected multiple sclerosis, the right shoulder range of motion is related to his service-connected condition. In a January 2020 VA examination, the Veteran reported intermittent anterior and superior pain of about 1 or 2 out of 10 without redness, swelling, warmth or dislocation. The Veteran stated that his shoulder mostly feels achy and occasional tenderness of the scapula. The Veteran stated that he is able to push and pull without difficulty, yet hesitant to lift much overhead. The Veteran stated that repeated movement caused less endurance, warmth and weakness. The examiner stated that the records indicated chronic right shoulder pain was referred to VA orthopedic in 2018. The examiner stated that risk of impingement due to arthritis and possible rotator cuff tear prompted an MRI which was positive. The examiner noted that the Veteran was referred to non-VA orthopedic with surgery in February 2019. The examiner stated that the Veteran attended non-VA physical therapy from February to May 2019, but he was not seen thereafter. The examiner stated that the Veteran did not report flare-ups of the shoulder or arm, but he did note functional loss or impairment. The examiner reported abnormal shoulder range of motion as the following: flexion at 0 to 130 degrees, abduction at 0 to 145 degrees, external rotation at 0 to 60 degrees and internal rotation at 0 to 40 degrees. The examiner stated that range of motion itself did not contribute to functional loss. The examiner reported that pain was noted on examination of flexion, external rotation and internal rotation, but it did not result in functional loss. The examiner stated that there was no evidence of pain with weight bearing, no evidence of pain with non-weight bearing, no pain upon passive range of motion testing, no objective evidence of localized tenderness and no objective evidence of crepitus. The examiner reported that there was no additional functional loss of range of motion after three repetitions. The examiner noted that the Veteran was not examined immediately after repetitive use over time. The examiner stated that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner reported that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner stated that the Veteran had weakened muscle strength in forward flexion and abduction described as active movement against some resistance. The examiner stated that this reduction in strength is related to the Veteran's service-connected condition. The examiner stated that the Veteran did not have muscle atrophy or ankylosis of the joint. The examiner stated that no rotator cuff condition is suspected. The examiner noted that the Veteran had surgery in February 2019 for rotator cuff repair, subacromial decompression, and distal clavicle resection per arthroscopy. The examiner reported residual scars from the surgery. The examiner described the scars as 0.6 cm by 0.2 cm on the posterior right shoulder, 0.5 cm by 0.2 cm on the lateral right shoulder, 0.5 cm by 0.2 cm on the lateral right shoulder, 0.7 cm by 0.2 cm on the anterior right shoulder, and 0.6 cm by 0.2 cm on the anterior right shoulder. The examiner stated that there was no objective evidence of any of the scars being painful or unstable or having a total area equal to or greater than 39 square cm. The examiner remarked that the Veteran's right arm is slightly shaky when raised above 90 degrees. The examiner noted that the Veteran occasionally used a cane as an assistive device but stated that the cane was used for the right shoulder and noted that the Veteran did not use an assistive device for the shoulder. The examiner further noted that an October 2018 right shoulder MRI indicated full thickness rotator cuff tear, small joint effusion, small subcoracoid recess fluid collection/bursitis, and degenerative joint disease of the acromioclavicular joint. The examiner described functional impact of the Veteran's shoulder disability on his ability to perform occupational tasks, noting that the Veteran should avoid frequent or constant overhead use and/or heavy lifting. The examiner remarked that the Veteran would be limited in employment requiring frequent and/or constant overhead use and lifting greater than ten pounds due to his condition. The examiner reported that light sedentary tasks are not a limiting factor. The examiner noted that the Veteran mostly provides car advice, but he sometimes tries to work on cars two to three times a month within the past year. After review of the record, the Board finds that a rating in excess of 20 precent is not warranted. Throughout the appeal period, the Veteran's symptoms manifested as limitation of motion of the arm at shoulder level. The evidence indicates that the Veteran's right scapula disability did not manifest as limitation of motion of the arm midway between the side and shoulder level. Even when evaluated under the revised regulations, the evidence does not indicate that the Veteran's symptoms manifested as limitation of motion of the arm at 45 degrees. Therefore, a 30 percent rating for right scapula disability is not warranted. Thus, a 20 percent rating is appropriate. The Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes pertaining to the shoulder. However, there is no indication of ankylosis of the scapulohumeral articulation or impairment of the humerus at any point during the period on appeal. Thus, ratings under Diagnostic Codes 5200 and 5202 are not available. Furthermore, a separate rating under Diagnostic Code 5203 for impairment of the clavicle or scapula is also not warranted, as there is no evidence of nonunion or malunion. The Board also notes that, while there is evidence of residual scarring from the Veteran's shoulder surgery, the evidence does not indicate painful or unstable scars, and the scars are already separately contemplated under a noncompensable rating under Diagnostic Code 7805. Accordingly, the Board concludes that a rating greater than 20 percent for the right scapula disability is not warranted. In reaching this decision, the Board has considered the Veteran's lay statements. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating now assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. 2. A rating in excess of 30 percent for right leg disability, leg length discrepancy 3. A rating in excess of 10 percent for a right knee disability, limitation of flexion 4. A compensable rating for a right knee disability, limitation of extension The Veteran also contends that his right knee disability is such that a noninitial separate compensable rating prior to January 6, 2020 and in excess of 10 percent for right knee disability, limitation of flexion is warranted. The Veteran further contends that a compensable rating for right knee disability, limitation of extension, is warranted. The Veteran currently has a 30 percent rating for right leg disability, leg length discrepancy under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5275. Hyphenated diagnostic codes, including a diagnostic code ending in the digits "99," are used when there is no specifically applicable diagnostic code, and the disability is rated by analogy. 38 C.F.R. § 4.27. Here, the Veteran's right leg length discrepancy is rated by analogy using the criteria for shortening of bones of the lower extremity under Diagnostic Code 5275. Under Diagnostic Code 5275, a 30 percent rating is warranted for shortening of the bones of the lower extremity that measure 2 1/2 to 3 inches (6.4 cms. to 7.6 cms.). 38 C.F.R. § 4.71a, Diagnostic Code 5275. A 40 percent rating is warranted for shortening of the bones of the lower extremity that measure 3 to 3 1/2 inches (7.6 cms. to 8.9 cms.). Id. A 50 percent rating is warranted for shortening of the bones of the lower extremity that measure 3 1/2 to 4 inches (8.9 cms. to 10.2 cms.) Id. A maximum 60 percent rating is warranted for shortening of the bones of the lower extremity that measure over 4 inches (10.2 cms.). Id. The note associated with Diagnostic Code 5275 indicates that both lower extremities should be measured from the anterior superior spine of the ilium to the internal malleolus of the tibia. The Note also states that this Diagnostic Code should not be combined with other ratings for fracture or faulty union in the same extremity. As of January 6, 2020, the Veteran also currently has a 10 percent rating under Diagnostic Code 5003-5260 and a noncompensable rating for limitation of extension in conjunction with the Veteran's service-connected right leg disability. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board notes that, under the revised regulations, Diagnostic Code 5003 no longer includes traumatic arthritis in its contemplation; however, as this revision does not apply in this case, the revised regulation for Diagnostic Code 5003 is inapplicable. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202(1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. The rating criteria for musculoskeletal disorders under 38 C.F.R. § 4.71a were amended, effective February 7, 2021 [Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020)]. Under Diagnostic Code 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees. 38 C.F.R. § 4.71a. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A maximum rating of 50 percent is warranted for extension limited to 45 degrees. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. Removal of symptomatic semilunar cartilage warrants a 10 percent rating under Diagnostic Code 5259. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. As an initial matter, the Board notes that the evidence in this case does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis. As such, those diagnostic codes are not for application. Under the regulations in effect prior to 2021, recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5257 was substantially revised in 2021. Under the revised regulations, patellar instability is rated as 10 percent disabling for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). There are also revised regulations for recurrent subluxation or instability that involve ligament tear, but as the Veteran's right knee did not involve a ligament tear, these provisions are not applicable to the instant appeal. Turning to the evidence, in a January 2016 VA examination, the Veteran reported current symptoms of occasional aching and catching. The Veteran stated that after his multiple sclerosis started, he was unable to stand more than ten minutes or walk more than fifty feet. The Veteran reported limitation in sitting, difficulty bending mostly due to weakness, and taking longer going up and down steps. The Veteran did not report flare-ups of his knee. The Veteran did report functional loss or impairment. The examiner reported abnormal right knee range of motion as the following: flexion at 5 to 130 degrees, extension at 130 to 5 degrees. The examiner stated that range of motion itself did not contribute to functional loss. The examiner stated that no pain was noted on examination, and there was no objective evidence of pain with weight bearing. The examiner noted objective evidence of crepitus. The examiner reported that there was no additional functional loss of range of motion after three repetitions. The examiner noted that the Veteran was not examined immediately after repetitive use over time. The examiner stated that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner reported that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted that the Veteran had additional contributing factors, stating that the Veteran had weakness due to nonservice-connected multiple sclerosis. The examiner stated that the Veteran had weakened muscle strength in forward flexion and extension described as active movement against some resistance. The examiner reiterated that this reduction in strength is related to the Veteran's multiple sclerosis. The examiner stated that the Veteran did not have muscle atrophy or ankylosis of the joint. The examiner reported that the Veteran did not have a history of recurrent subluxation, lateral instability or recurrent effusion. The examiner further noted normal results upon joint stability testing. The examiner stated that the Veteran has tibial and/or fibular impairment, noting leg length discrepancy. The examiner provided leg length measurements of right leg at 94 cm and left leg of 98 cm. The examiner stated that this discrepancy is related to the Veteran's service-connected femur fracture. The examiner reported a May 2015 imaging study which showed mild tricompartmental degenerative joint disease. The examiner remarked that mild degenerative joint disease of the right knee is a natural progression to the service-connected right leg disability. The examiner reported functional impact of the Veteran's right knee disability on his ability to work, stating that the Veteran should avoid frequent and/or prolonged bending, kneeling, squatting or standing. In a January 2020 VA examination, the Veteran reported stiffness of the right knee, stating that it does not want to straighten. The Veteran reported that stretching is helpful. The Veteran denied redness, swelling, locking, and giving out. The Veteran stated that he was able to tolerate standing about five minutes, walk one-fourth miles, sit about sixty minutes, and hold rails when using stairs. The Veteran also stated that he avoids kneeling and squatting. The Veteran also stated that he otherwise has to hold onto something to get back up. The Veteran noted that his right knee and leg feel tired and weak with repeated use. The Veteran reported flare-ups one to two times a year, lasting days, with a pain level of 4 to 5 out of 10 and requires use of a cane. The Veteran also reported functional loss or impairment. The examiner reported abnormal right knee range of motion as the following: flexion at 5 to 120 degrees, extension at 120 to 5 degrees. The examiner stated that range of motion itself did not contribute to functional loss. The examiner stated that no pain was noted on examination, there is no objective evidence of localized tenderness, there was no evidence of pain in passive motion testing, there is no evidence of pain with non-weight bearing, and there was no objective evidence of pain with weight bearing. The examiner noted objective evidence of crepitus. The examiner reported that there was no additional functional loss of range of motion after three repetitions. The examiner noted that the Veteran was not examined immediately after repetitive use over time. The examiner stated that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner reported that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner later remarked that based on the Veteran's reported history, she would estimate an additional loss of 5 degrees with flexion only after repeated use and with flare-ups. The examiner also noted that the examination was not conducted during a flare-up. The examiner stated that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups. The examiner reported that pain, weakness, fatigability or incoordination did not significantly limit functional ability during flare-ups. The examiner noted additional contributing factors of the disability, such as disturbance of locomotion and interference with standing. The examiner stated that the Veteran had normal muscle strength in forward flexion and extension. The examiner stated that the Veteran did not have muscle atrophy or ankylosis of the joint. The examiner further noted normal results upon joint stability testing. The examiner stated that the Veteran has tibial and/or fibular impairment, noting leg length discrepancy. The examiner provided leg length measurements of right leg at 94 cm and left leg of 98 cm. The examiner noted that this condition is related to the service-connected fractured right femur. The examiner noted the Veteran's report of arthroscopy of the right knee around 1985. The examiner stated that the Veteran had residual scars. The examiner described the scars as a lateral right knee scar measuring 0.4 cm by 0.2 cm, anterior right knee scar measuring 0.4 cm by 0.2 cm, medial right knee scar measuring 0.4 cm by 0.2 cm, lateral side femur scar measuring 0.4 cm by 0.2 cm, and medial side femur scar measuring 1.0 cm by 1.0 cm. The examiner noted that the Veteran occasionally used a cane as an assistive device for normal mode of locomotion. The examiner reported functional impact on the Veteran's ability to work described as avoidance of uneven terrain, frequent and/or prolonged climbing, kneeling, squatting or standing. The examiner remarked that light, sedentary tasks are not a limiting factor. The examiner noted that the Veteran mostly provides car advice and has tried to work on cars about two to three times a month in the past year. He described utilizing his knowledge of auto mechanics to diagnose problems. In a December 2020 VA examination, the Veteran reported that his right knee gets aches and occasional weakness. The Veteran stated that he has pain two to four times a month that lasts until he rests his right knee for ten minutes up to two hours, rating his pain 3 to 5 out of 10. The Veteran stated that he continues to work around five hours a week doing light work, such as diagnosing car problems and occasionally changing car parts such as alternators, fan belts, or sensors. The Veteran stated that on rare occasions, he will do brakes. The Veteran reported that he avoids lifting. The Veteran reported no flare-ups. The Veteran reported functional impairment described as weakness when going up the stairs and use of handrails. The Veteran also reported buckling of the right knee that occurs every two to three months causing him to catch himself. The Veteran denied any locking of the right knee. The examiner reported abnormal right knee range of motion as the following: flexion at 0 to 115 degrees, extension at 115 to 0 degrees. The examiner stated that range of motion itself did not contribute to functional loss. The examiner stated that no pain was noted on examination, there was no evidence of pain on passive range of motion testing, there was no objective evidence of localized tenderness, there was no objective evidence of pain with weight bearing, and there was no objective evidence of pain when the joint is used in non-weight bearing. The examiner noted objective evidence of crepitus. The examiner reported that there was no additional functional loss of range of motion after three repetitions. The examiner noted that the Veteran was not examined immediately after repetitive use over time. The examiner stated that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner reported that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner stated that the Veteran had weakened muscle strength in forward flexion and extension described as active movement against some resistance. The examiner noted that the Veteran's weakness is not entirely due to the service-connected condition, noting that the Veteran has a history of relapsing-remitting multiple sclerosis. The examiner further stated that the Veteran's degenerative joint disease of the right knee would not be causative of the muscle weakness. The examiner stated that the Veteran did not have muscle atrophy or ankylosis of the joint. The examiner further noted normal results upon joint stability testing. The examiner also reported that the Veteran did not have a tibial and/or fibular impairment, and the Veteran did not have a meniscus condition. The examiner noted the Veteran's report of arthroscopy of the right knee in the 1980's. The examiner further noted additional findings of a steady, wide-based gait with slight right leg limp due to relapsing multiple sclerosis. The examiner reported that the Veteran used a brace as an assistive device for normal mode of locomotion; however, the examiner specified that the brace was for the Veteran's back condition. The examiner noted functional impact on the Veteran's ability to work, remarking that in an occupational setting, the Veteran should avoid crawling, squatting or prolonged kneeling. The examiner noted that medical records indicate that the Veteran currently can walk one-fourth a mile at an easy pace. The examiner also noted that the Veteran reported currently working five hours a week, stating that he cannot do the heavy lifting work of auto mechanics. The examiner stated that the Veteran described utilizing his knowledge of auto mechanics to diagnose problems. The examiner reported that the Veteran would be capable of sedentary work with light activity and avoiding crawling, squatting or prolonged kneeling. After review of the record, the Board finds that a rating in excess of 30 percent for a right leg disability, leg length discrepancy, is not warranted. Throughout the appeal period, the evidence shows that the Veteran's right leg discrepancy measures 4 cm. The evidence does not indicate a right leg length discrepancy of 7.6 cm. Therefore, a 40 percent rating is not warranted. The Board finds that a rating in excess of 10 percent for a right knee disability, limitation of flexion, is not warranted. The Board also finds that a compensable rating for right knee disability, limitation of extension, is not warranted. Throughout the appeal period, the evidence indicates range of motion was limited to, at worst, painful motion on flexion, flexion of 115 degrees, and extension of 5 degrees. There is no evidence of flexion limited to 30 degrees or extension that was limited to 10 degrees. Moreover, during this period, there is no evidence of ankylosis of the knee, or cartilage dislocation or removal. The Board notes that in the December 2020 VA examination, the Veteran reported that his knee occasionally buckles, and a prior examination notes occasional use of a cane. The Board also notes, however, the evidence indicates that the Veteran's muscle weakness is due to a non-service-connected disability and the evidence does not indicate instability. Therefore, under the prior regulations or the revised regulations, a separate rating for instability would not be warranted. The Board also notes that, while there is evidence of right lower extremity scars, the evidence does not indicate painful or unstable scars, and the scars are already separately contemplated under a noncompensable rating under Diagnostic Code 7805. As provided above, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202. However, even when considering reported functional impairment during repetitive use over time and flare-ups, the evidence does not demonstrate that the Veteran's limited right knee flexion and extension more nearly approximated the next higher ratings for any stages during the appeal period. Thus, consideration under DeLuca has been provided and additional consideration for higher ratings is not warranted for all periods on appeal. DeLuca v. Brown, 8 Vet. App. 202 (1995). In reaching this decision, the Board has considered the Veteran's lay statements. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings now assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that higher ratings are warranted. REASONS FOR REMAND 1. A rating in excess of 10 percent for a traumatic brain injury is remanded. The Veteran contends that his traumatic brain injury is such that a noninitial rating in excess of 10 percent is warranted. In a September 2019 remand, the Board noted that the Veteran's 2016 VA examination was conducted by a nurse practitioner, and the record did not indicate the examiner's qualifications or supervision by a physiatrist, psychiatrist, neurologist, neurosurgeon, or TBI specialist. The Board directed that the Veteran be scheduled for a TBI examination to be conducted by a physiatrist, psychiatrist, neurologist, neurosurgeon, or TBI specialist, to determine the current severity of his service-connected residuals of in-service TBI. In January 2020, the Veteran was afforded a VA examination for TBI; however, the same nurse practitioner from his previous examination conducted the examination. The examiner noted that while the Board remand requested that the Veteran's examination be conducted by physiatrist, psychiatrist, neurologist, neurosurgeon or TBI specialist, the VA 21-2507 Request for Physical Examination from the agency of original jurisdiction (AOJ) to schedule the examination did not contain this detail. The Board finds that the AOJ failed to substantially comply with the September 2019 remand directives. Such noncompliance is error on the part of the originating agency. Moreover, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board must once again remand the matter for compliance. 2. TDIU prior to July 3, 2020 is remanded. The Veteran contends that, prior to July 3, 2020, his disabilities were such that a TDIU is warranted. As a TDIU has not been granted for the entire appeal period, the matter of TDIU prior to July 3, 2020 remains properly before the Board. The Veteran filed a formal claim for a TDIU on July 26, 2016. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran is seeking entitlement to a TDIU as a component of his claim for a higher rating for his service-connected TBI. Because a decision on the rating of the TBI could significantly impact a decision on entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: Schedule the Veteran for a TBI examination, to be conducted by a physiatrist, psychiatrist, neurologist, neurosurgeon, or TBI specialist, to determine the current severity of his service-connected residuals of in-service TBI. The Veteran MUST be scheduled with one of these specific examiners to conduct the TBI examination per VA regulations. The AOJ should include this specific directive in the VA 21-2507 Request for Physical Examination. The entire claims file must be made available to and reviewed by the examiner. All indicated evaluations, studies, and tests should be accomplished, and all findings must be reported in detail. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.