Citation Nr: 21074527
Decision Date: 12/15/21	Archive Date: 12/15/21

DOCKET NO. 14-23 289
DATE: December 15, 2021

ORDER

Service connection for right ear hearing loss is denied.

An initial compensable rating for left ear hearing loss is denied.

A separate rating for the left knee based on meniscal impairment of 20 percent, effective December 20, 2012, through February 24, 2016; and 10 percent effective since February 25, 2016, (excluding periods of temporary total rating) is granted. 

An increased rating for the left knee based on recurrent subluxation (patellar dislocation) with instability of 20 percent, effective since July 22, 2013, (excluding periods of temporary total rating) is granted.

An increased rating for the left knee in excess of 10 percent based on painful or limited motion or other factors is denied.

An additional extension of a temporary total rating based on convalescence after the December 20, 2012, left knee surgery from July 1, 2013, through September 30, 2013, is granted.

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran's current right ear hearing loss was not manifest during service or to a compensable within one year after service, and is not otherwise related to service.

2. The Veteran has had no more than Level IV left ear hearing loss and nonservice-connected right ear hearing loss that is assigned Level I for rating purposes. 

3. The Veteran had a left knee lateral meniscus tear that was identified and repaired on December 20, 2012; and a partial lateral meniscectomy or removal on February 25, 2016; with non-overlapping meniscal symptoms before and after removal. 

4. The Veteran has had moderate left knee instability due to recurrent subluxation or dislocation of the kneecap or patella, requiring a prescribed brace and use of a non-prescribed cane at times (outside of temporary total rating periods), since more than one year prior to his July 22, 2013, claim for an increased rating, and with surgical repair of the patellofemoral complex in 2012 and 2016. 

5. The Veteran's left knee disability has resulted in painful or limited motion at times due to pain and other factors, but with flexion to greater than 45 degrees and extension to greater than 10 degrees; and no impairment approaching ankylosis, symptoms from tibia or fibula impairment, or genu recurvatum. 

6. After his December 20, 2012, left knee surgery, the Veteran continued to require convalescence from school and work after June 30, 2013 to September 30, 2013.

7. Although the Veteran has had one service-connected disability rated 40 percent or more and a combined rating of 70 percent or more since 2013 (with the separate and higher ratings granted in this decision), he has not been unable to obtain or maintain substantially gainful employment, to include being limited to marginal employment, due to his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for an initial compensable rating for left ear hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.85.

3. The criteria for a separate rating for the left knee based on meniscal impairment of 20 percent, effective December 20, 2012, through February 24, 2016; and 10 percent effective since February 25, 2016, (excluding periods of temporary total rating) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258 & 5259.

4. The criteria for an increased rating for left knee recurrent subluxation (patellar dislocation) with instability of 20 percent, effective since July 22, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5257.

5. The criteria for an increased rating for the left knee in excess of 10 percent based on painful or limited motion or other factors are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5260, 5261, 5262, 5263.

6. The criteria for an additional extension of a temporary total rating based on convalescence after a December 2012 left knee surgery from July 1, 2013, through September 30, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.30.

7. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from August 1995 to July 1998. 

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from October 2013 and February 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran withdrew his prior request for a Board hearing; he has not made another hearing request. 

In May 2018, the Board remanded these issues for additional development. At that time, the Board explained that only an extension of a temporary total rating beyond June 30, 2013, for the December 2012 left knee surgery is on appeal. The Veteran did not perfect an appeal from the denial of an extension of a temporary total rating relating to a February 2016 left knee surgery while his other appeals were pending.  

As explained below, the prior remand directives were at least substantially completed, and no further development or evidence is needed for a fair appeal.

Service Connection

1. Service connection for right ear hearing loss

In October 2013, the Veteran submitted an informal claim for service connection for hearing loss, asserting that the condition is due to hazardous noise exposure during service while working on the flight deck as an aviation boatswain's mate. See also, e.g., June 2014 notice of disagreement and February 2015 VA Form 9.

A December 2013 rating decision initially denied service connection bilaterally. After a February 2014 VA examination, which was new and material evidence, a February 2014 rating decision granted service connection for left ear hearing loss, but denied reopening and service connection for right ear hearing loss. The Veteran appealed from both determinations, and the left ear disability rating is addressed below. It is unnecessary to address the requirements to reopen a prior claim because the December 2013 rating decision was not final. 38 C.F.R. § 3.156(b).

Generally, service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Direct service connection requires three elements: (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).

A presumption of service connection provides that organic disease of the nervous system, including sensorineural hearing loss, is considered a chronic disease that will be presumed related to service if it was noted or diagnosed as chronic in service; or if it manifested to a compensable degree within one year after active duty discharge; or if chronicity or continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3).

VA will consider impaired hearing to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

A current right ear hearing loss disability is shown by testing during an October 2020 VA examination, based on a speech discrimination score of 92 percent. The Veteran's pure tone thresholds ranged from 15 to 25 decibels at 500 to 4000 Hertz, which did not rise to the disability level, but the speech score alone is sufficient. The examiner stated that the right ear speech score was appropriate for use.

An in-service injury of the reported hazardous noise exposure has been shown based on the award of service connection for left ear hearing loss on that basis. 

However, a nexus to service has not been shown for right ear hearing loss. As discussed below, there was no onset or continuity since service, and no competent nexus linking the current right ear hearing loss disability to the Veteran's service. 

The Veteran has not asserted that he had hearing difficulties during service or on a continuous basis since service. Instead, he essentially asserts that his current hearing loss disability is related to service despite first noticing it after service. 

Service treatment records do not reflect hearing complaints or objective loss. The Veteran's May 1995 enlistment examination showed right ear pure tones from 0 to 20 decibels from 500 to 400 Hertz. An August 1995 reference audiogram for the hearing conservation program showed right ear pure tones from 5 to 15 decibels from 500 to 4000 Hertz, and stated that the Veteran used hearing protection and was not routinely exposed to hazardous noise. Personnel records in April and July 1996 and in April 1997 noted that the Veteran's ship had a hearing conservation program in place due to the possibility of exposure to hazardous noise. He was fitted with hearing protection devices and advised that he was required to wear them in high-noise situations. A June 1998 audiogram compared to 1995 showed right ear pure tones from 5 to 15 decibels. Similarly, the June 1998 separation examination showed right ear pure tones from 5 to 10 decibels from 500 to 4000 Hertz. These results were all normal, with no results above 20 decibels to show impairment below a disability level. The Veteran also denied noticing hearing loss at enlistment and separation, although he did report other problems at separation. 

Post-service, the Veteran had both recreational and occupational noise exposure. During the October 2020 VA examination, he reported noise exposure as a police officer off and on for 16 years, as an armed security officer off and on for 10 years, as a current VA police officer for one year, and through target practice and hunting. He stated that he wore hearing protective devices for all of these activities. However, as noted below, a November 2020 VA treatment record reflects that the Veteran reported being around a lot of recreational noise without using hearing protection around the time of his hearing tests in 2013. The October 2020 VA audiologic examiner also noted a pertinent medical history of high blood pressure. 

In addition to these contradicting reports as to whether he wore hearing protection with post-service noise exposure, the Veteran reported during the October 2014 VA examination that he did not wear hearing protection during service. However, this report directly contradicts the multiple notations during service that he was required to wearing hearing protection and that he did wear those devices. The evidence in his service records is more probative than the Veteran's contrary reports decades after service and for the purposes of his disability claim because the earlier reports were contemporary in time to the events. Additionally, the Veteran's report for treatment in November 2020 of not using hearing protection in 2013 is more probative than his report during the VA examination the prior month because he was seeking treatment, and thus had an incentive to give an accurate history for proper care. 

Accordingly, the Veteran is competent but not credible as to his reports of not wearing hearing protection during service and always wearing hearing protection during his noise exposure after service. Instead, the most probative evidence shows that he did wear hearing protection during service, and he had significant noise exposure after service for jobs and leisure and did not always wear protection. 

Additionally, the Veteran has not identified treatment for hearing difficulties until many years after service, and he first had his hearing evaluated by VA in 2013, as noted below. Contemporary medical evidence is not required to show a disability or incurrence during service. However, the lack of treatment or corroborating medical evidence for many years may be considered as one of several factors in determining whether a disability was incurred during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009).

VA treatment records from January 2011 through November 2011 noted no decreased hearing on review of systems. Although a January 2011 record stated that the Veteran wore bilateral hearing aids, this appears to be an error because he denied a decrease in hearing, and he reported no prior use of hearing aids in 2013. 

A January 2013 VA treatment record first noted a history of hearing loss and tinnitus. In February 2013, the Veteran reported that he was going to have his hearing checked and he believed that may be what caused some yelling. In June 2013, he requested a hearing consult and stated that his hearing was getting worse. 

In August 2013, the Veteran was seen for a hearing evaluation for complaints of hearing loss and tinnitus bilaterally, with no prior use of hearing aids. Testing showed sensorineural hearing loss with pure tone thresholds of mild to moderate loss in the right ear and mild to severe loss in the left ear, and excellent word recognition of 100 percent bilaterally. The Veteran was found eligible for hearing aids and, in September 2013, VA fitted him for hearing aids and issued them.

An October 2013 VA mental health treatment record noted that the Veteran had found out that he was "more hard-of-hearing than he thought" six weeks ago and was issued hearing aids. At that point, he realized that he had been talking louder than needed and appeared more hostile than intended at times. 

The notations in June 2013 and October 2013 that the Veteran believed his hearing was getting worse or was worse than he thought could be consistent with him first noticing the problems in January 2013, when he first reported them for treatment, or with him noticing hearing difficulties earlier than 2013. However, he has not identified longstanding noticeable hearing problems, and as noted above, he denied decreased hearing during several VA treatment records shortly before in 2011.

During an October 2014 VA examination, the Veteran had some degree of impaired hearing in the right ear, as shown by pure tone thresholds above 20 decibels, with 25 decibels at 500 Hertz and 30 decibels at 3000 and 4000 Hertz. However, these results and his speech score of 94 percent did not rise to the level of a disability. 

A January 2016 VA treatment record noted on review of systems that the Veteran's hearing was "good." Several years later, a February 2020 treatment record noted that the Veteran had "no complaints" on review of systems for the ear, nose, or throat, including that there was no difficulty hearing, hearing loss, or tinnitus.

As noted above, the Veteran's right ear pure tones were 15 to 25 decibels at 500 to 4000 Hertz during the October 2020 examination, with a 92 percent speech score. 

Shortly thereafter, a November 2020 VA audiologic evaluation for treatment noted that the Veteran reported constant tinnitus and that he did not like his last set of hearing aids. The provider noted bilateral sensorineural hearing loss and that right ear results showed mild low frequency sensorineural hearing loss raising to normal hearing, with a word recognition score of 96 percent using the NU-6 list (not the Maryland CNC Test as required to determine a VA disability or rating). The provider noted that prior results from 2013 (including for the left ear), were much different. In response, the Veteran stated that he had been around a lot of recreational noise without hearing protection around the time of those tests. The provider was unsure why the results differed so much, but today's test had good reliability. The provider counseled the Veteran on the importance of consistent hearing aid use and recommended trying a hearing aid only in the left ear. 

To the extent that the Veteran's claim may be construed as an assertion of continuous symptoms since service, those reports are not credible due to inconsistency with the other available evidence, as summarized above. Instead, the weight of the evidence establishes that the Veteran did not have noticeable hearing difficulties or chronic hearing loss during service or until many years later. 

Because the Veteran's hearing loss was not diagnosed or manifest during service or until many years after service, the chronic disease presumption does not apply.

The Veteran is not competent to provide an opinion as to the cause of his hearing loss disability. This is a medically complex question that requires knowledge of the involved neurologic system in the body and interpretation of his history and tests.

There is no medical opinion linking the current disability to service. Although the October 2014 VA examiner opined that the Veteran's current hearing loss was as likely as not related to service based primarily on him having had in-service noise exposure on a flight line. This led to the award of service connection for left ear hearing loss, but there was no diagnosed right ear disability at that time. Additionally, the 2014 examiner did not mention the Veteran's post-service noise exposure and considered inaccurate or not credible evidence that the Veteran did not wear hearing protection in service. Thus, the opinion will not be extrapolated. 

In a December 2020 addendum, the October 2020 VA examiner opined that the Veteran's right ear hearing loss disability was less likely than not related to service. This opinion is highly probative and persuasive because it gives clear conclusions and rationale, while reflect application of medical expertise to an accurate factual and medical history for the Veteran consistent with the Board's credibility findings.

Specifically, the 2020 examiner considered the Veteran's audiogram results and information from reference audiograms during service as summarized above, noting that there were normal hearing thresholds with no complaint of decreased hearing. The examiner also noted the August 2013 VA finding of mild to moderate sensorineural hearing loss in the right ear with 100 percent excellent speech discrimination, and the Veteran's report of occupational noise exposure after service. In addition to the October 2020 VA examination results, the examiner summarized the results of the February 2014 VA examination and noted that the Veteran had a mild loss based on pure tone thresholds and 94 percent excellent speech discrimination. The examiner correctly stated that he did not meet the VA criteria for a hearing loss disability more than 10 years after service. The examiner stated that there was no significant permanent shift in hearing thresholds beyond test variability from the Veteran's service entrance in May 1995 through his to separation exam in June 1998, and that this is objective evidence of no permanent auditory damage on active duty from noise exposure. The examiner also noted that there was no report of complaint or treatment for a hearing decrease in service records, separation or medical examinations, or until close in time to his VA disability claim. The examiner explained that noise exposure is conceded and the relationship of noise, auditory damage, and hearing loss is well established, but auditory damage and hearing loss is not conceded based on noise exposure. There must be a nexus of auditory damage to relate a current hearing loss to military noise exposure and not another etiology, and the evidence here is against a nexus.

Although the audiograms or charts for the August 2013 and November 2020 hearing evaluations that were conducted for VA treatment are not of record, there is no argument or suggestion that they would have a reasonable possibility of aiding in substantiating the Veteran's claim or that another opinion is needed to consider them. Instead, the 2020 provider noted mild to normal hearing in the right ear at that time, and the 2020 VA examiner noted the summary of the 2013 provider that there was mild to moderate hearing loss in the right ear at that time. The 2014 and 2020 VA examinations assisted in clarifying the extent of disability, and the 2020 provider noted that the results were very different from 2013 but did not reference the 2014 results. Moreover, as noted below, the 2020 VA examiner already considered that the Veteran first had hearing complaints and a diagnosis in 2013, which is consistent with the evidence and the Board's credibility findings.

In summary, the preponderance of the evidence is against service connection for the current right ear hearing loss under any reasonably raised theory. There is no reasonable doubt to resolve in the Veteran's favor, and the appeal is denied.

Disability Ratings

VA's percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

The most relevant information in determining the appropriate initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). For an increase in the level of a service-connected disability, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In either case, staged ratings may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period. Hart v. Mansfield, 21 Vet. App. 505 (2007). This decision focuses on the evidence pertinent to the rating criteria and disability severity during the relevant periods, but the Board has considered the entire record to have a full picture of the disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). 

Effective dates should not be assigned based solely on the date of diagnosis. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead, all relevant facts should be considered to determine the date the increase in disability first manifested. DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011); see also 38 C.F.R. § 3.400.

2. Initial compensable rating for left ear hearing loss

The Veteran asserted in his June 2014 notice of disagreement that his left ear hearing loss is more severe than the assigned 0 percent (noncompensable) rating.

The ratings for hearing loss are assigned through a mechanical application of the rating schedule to numeric designations that are assigned based on the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Disability ratings for hearing loss are assigned based on the results of a controlled speech discrimination (Maryland CNC) test combined with the results of pure tone audiometry tests conducted by a state-licensed audiologist without the use of hearing aids. A Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. See 38 C.F.R. §§ 4.85, 4.86. 

First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold (the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four). After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. 

The Roman numeral designation for hearing impairment may be determined based only on the pure tone threshold average using Table VIA if the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. Table VIA may also be used where there is an exceptional pattern of hearing impairment, defined as where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or where the pure tone threshold at 1000 Hertz is 30 decibels or less and the pure tone threshold at 2000 Hertz is 70 decibels or more. Where such an exceptional pattern is shown, a Roman numeral designation for hearing impairment may be ascertained using either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. §§ 4.85 (c), 4.86.

In this case, the February 2014 VA examination showed left ear pure tones of 20 decibels at 1000 Hertz, 20 decibels at 2000 Hertz, 30 decibels at 3000 Hertz, and 40 decibels at 4000 Hertz, for an average of 28. Speech discrimination was 82 percent. Under Table VI, these results yield a designation of Level III. Applying Table VII, combining Level III with Level I for the right ear results in a 0 percent rating.

During the October 2020 VA examination, testing showed left ear pure tones of 25 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 15 decibels at 3000 Hertz, and 20 decibels at 4000 Hertz, for an average of 21. Speech discrimination was 70 percent, but the examiner stated that the use of this speech score was not appropriate for the left ear. Nevertheless, even using this speech score, under Table VI, these results yield a designation of Level IV. Applying Table VII, combining Level IV with Level I for the right ear results in a 0 percent rating. 

Although the audiograms or individual pure tone results are not available for the 2013 and 2020 VA treatment evaluations, those results were inadequate for VA rating purposes because they used the NU-6 test, not the Maryland CNC test. Moreover, as noted above, the November 2020 VA provider noted that the results at that time were much different than in August 2013, but did not reference the 2014 or 2020 VA examination results that existed in clarifying the severity.

The Veteran has generally described functional loss of difficulty hearing, communicating, and understanding speech or conversations due to his hearing loss and tinnitus, for which he has a separate 10 percent rating. Although he believes that his hearing loss is more severe than the assigned 0 percent rating, VA regulations require objective testing as set forth above, and these types of problems are contemplated by the schedular rating for hearing loss in 38 C.F.R. § 4.85. The fact that the Veteran has been prescribed hearing aids does not affect his rating.

In summary, the manifestations of the Veteran's left ear hearing loss were relatively consistent throughout the appeal period. Any increases in severity did not more nearly approximate the criteria for the next higher rating, and there is no reasonable doubt to be resolved in the Veteran's favor. The appeal is denied. 

3. , 4., and 5. Left knee disability ratings, including a rating in excess of 10 percent based on a post-surgical lateral meniscus tear with instability, and a rating in excess of 10 percent based on painful or limited motion 

After submitting a claim for a temporary total rating under for his July 2012 and December 2012 left knee surgeries, which are discussed below, the Veteran submitted a claim in July 2013 for an increased rating for his left knee disability. A claim for a temporary total rating is separate from an increased rating claim, and with this Board decision, the Veteran has been awarded 100 percent temporary rating for his left knee effective February 26, 2012, through September 30, 2013. 

He seeks higher compensation based primarily on pain and instability. At the time of his July 2013 claim, he was service-connected for left knee chondromalacia status post-surgical lateral release, medial patellofemoral ligament reconstruction, and osteoarthritis with a scar, rated 10 percent based on painful or limited motion. 

The October 2013 rating decision denied a higher rating on that basis, but granted a separate 10 percent rating under Diagnostic Code 5257 for a symptomatic post-surgical lateral meniscus tear with residual instability, effective July 22, 2013. 

Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a veteran may receive multiple ratings based on separate symptoms in the same joint. Although the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant diagnostic codes (DCs) for the knee have been interpreted to apply to different functions of the knee, thus warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and recurrent subluxation or instability of the knee. A separate rating may also be assigned for meniscal impairment if there are non-overlapping symptoms. The Board will explore all possibilities in this case.

In addition to the general rules for rating disabilities noted above, for musculoskeletal conditions, a higher rating based on additional functional loss after repetitive use or flareups based on range of motion should be considered. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Pain itself does not constitute functional loss, and painful motion must result in functional loss to constitute limited motion for a rating under diagnostic codes based on limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

VA amended the regulations for rating knee disabilities, including DC 5257 (subluxation and instability) as relevant to this case, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020). The criteria that are most favorable to the Veteran's pending claim apply, but an award based on the amended regulations may not be made effective before the effective date of the change. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 

Under either version of the rating criteria, under DC 5003 for degenerative arthritis, when limitation of motion of the specific joint is noncompensable under the appropriate diagnostic code, a rating of 10 percent will be assigned for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. If there is no limitation of motion, ratings of 10 or 20 percent are available if there is x-ray evidence of two or more major joints or two or more minor joint groups, requiring occasional incapacitating exacerbations for a 20 percent rating. 38 C.F.R. § 4.71a.

Similarly, where limitation of motion is not compensable under the specific code for a joint, 38 C.F.R. § 4.59 provides for a minimum compensable rating for actually painful joints in conjunction with a diagnostic code based on limitation of motion. Sowers v. McDonald, 27 Vet. App. 472, 479 (2016); Southall-Norman v McDonald, 28 Vet. App. 346, 354 (2016).

Normal knee range of motion is from 0 degrees of flexion to 140 degrees of extension. 38 C.F.R. § 4.71, Plate I.

Under DC 5260, a 10 percent rating is assigned for limitation of flexion of the leg 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. Id.

Under DC 5261, a 10 percent rating is assigned for limitation of extension of the leg 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. Id.

Where there is painful or limited motion with both flexion and extension, but the compensable criteria are not met for either flexion (DC 5260) or extension (DC 5261), only one minimum rating of 10 percent should be assigned. Separate ratings may not be assigned for painful or noncompensable limitation of motion using DC 5003 or section 4.59 in connection with 5260, and compensable limitation of extension under DC 5261. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

DC 5258 addresses a dislocated (torn) semilunar cartilage (meniscus), and assigns a 20 percent rating if there are frequent episodes of "locking," pain, and effusion into the joint. Under DC 5259, symptomatic removal of the meniscus is rated at 10 percent. 38 C.F.R. § 4.71a.

Effective prior to February 7, 2021, under DC 5257, recurrent subluxation or lateral instability of the knee will be assigned a rating of 10 percent if it is mild, 20 percent if it is moderate, or 30 percent if it is severe. Id. (2020).

Under the criteria effective since February 7, 2021, DC 5257 provides that recurrent subluxation or instability will be assigned a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating will be assigned if there is one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating requires an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Id. 

There are also new criteria for patellar instability under DC 5257. A 10 percent rating is assigned 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. Id. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. at Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. at Note (2).

As explained below, a separate staged rating is warranted for the Veteran's left knee meniscal impairment, and a higher rating is warranted for his subluxation or instability, but another separate or even higher rating is not appropriate.

The Veteran has had three left knee surgeries: two in 2012 and one in 2016. Although some records state that he had a left knee surgery in 2011, the evidence reflects that this was a right knee surgery that occurred in October 2011.

In his October 2013 notice of disagreement, the Veteran asserted that he has more than mild or minimal instability and needed a brace and cane to walk or his knee would give out. In his June 2014 VA Form 9, he asserted that he has "major" instability, as shown by the recent VA examiner being unable to complete testing, wearing a left knee brace all the time, and walking with a cane. He stated that he was still receiving treatment and may need another surgery, and he had resigned from prior employment due to an inability to complete tasks due to his knee. 

The May 2018 remand directed that update VA treatment records since 2013 be obtained, and a new VA examination be provided address the current knee severity. Identified and available records have been associated with the claims file, including private treatment records submitted by the Veteran in June 2020 and VA treatment records through April 2021, which show continued left knee pain. Although a VA treatment record in July 2020 also noted non-VA orthopedic care, he did not submit copies of any such records or authorize VA obtain them. A left knee VA examination was provided in September 2020. There is no argument or suggestion that the severity has increased since then, that more recent medical information is necessary to assess the Veteran's current left knee severity, or that another remand is needed for a fair adjudication of his appeal. As discussed below, the VA examination and other evidence are adequate to determine his ratings.

Arthritis and Limitation of Motion 

The Veteran has left knee arthritis with painful and limited motion. He has been assigned a 10 percent rating based on painful or limited motion, primarily flexion. A higher or separate rating is not warranted for limited flexion or extension.

Throughout the appeal period, although the Veteran has had limited flexion or painful motion at times, with crepitus, pain with active and passive motion, and pain with and without weightbearing at times. He has not met the criteria for higher than a 10 percent rating under DC 5260, as is there no suggestion that his flexion was limited to 30 degrees or lower, even during periods of temporary total ratings. 

Shortly after his claim, the August 2013 VA examiner measured left knee flexion to 70 degrees, but the Veteran estimated his additional loss during flareups or after repeated use over time as retaining 10 to 15 percent of function, with an estimated 25 degrees of lost range of motion. This would equate to 45 degrees as additional loss after the measured 70 degrees. As this Board decision grants a temporary total rating through September 30, 2013, there was a higher than normal severity then. 

At other times, the Veteran had flexion to well above 45 degrees, even when considering additional limitation due to increased pain or other contributing factors during flareups or after repeated use over time. This included measurements during temporary total rating periods; although the Veteran had more severe pain and instability or dislocation, they did not result in additional loss of motion. 

For example, as noted above, in his July 2013 claim, the Veteran primarily complained of difficulty walking and requested an extension of his temporary total rating, which is granted. Within the year prior to his claim, but during a period of temporary total rating after his July 2012 surgery, an October 2012 VA treatment record noted that the Veteran reported full range of motion but with severe pain because his kneecap kept "popping out," and the physical therapy provider measured flexion to 120 degrees, with limitation in part due to pain. 

A January 2016 VA treatment record noted left knee pain, crepitus, tenderness on palpation, and unspecified restricted motion due to pain. The Veteran complained of his knee giving out and falling twice in the past year. The February 25, 2016, left knee surgery reported noted that the surgery was done for continued pain and recurrent instability. During the period of temporary total rating after this surgery, a May 2016 VA treatment record measured range of motion from 0 to 100 degrees, despite mild swelling and pain with palpation of the tibial tubercle. 

An August 2016 VA emergency treatment record noted left knee pain and that the Veteran wanted a new left knee brace, and he had been doing overtime work recently. A November 2018 VA treatment record stated that the Veteran had difficulty walking when he first gets up. A May 2019 treatment record generally noted range of motion restricted by pain when he sought treatment for swelling and had fluid drained. Private treatment records in July 2019 and August 2019 noted that the Veteran struggled or had soreness with deep squatting knee activities, although his flexion was measured to 140 degrees (full range) with pain during both treatment sessions. A February 2020 VA treatment record measured normal range of motion despite reports of chronic stable left knee pain. Two March 2020 private emergency treatment records found "good" or normal range of motion, with the second record specifically noting no limitation in knee flexion, despite having obvious swelling, effusion, or edema and tenderness to palpation on examination. The Veteran had fluid drained from the left knee on both of these occasions. 

Consistent with the above records, in his May 2020 VA Form 21-8940, the Veteran reported that his left knee was painful, but he described needing to have fluid drained from his knee and mobility issues described as his knee giving out all the time. These reports are consistent with his records as noted above, and the Veteran did not describe any significant limitation of flexion or other range of motion. 

During the September 2020 VA examination, the Veteran reported frequent left knee swelling and constant left knee pain measured as 5 to 8 out of 10. The examiner measured flexion to 115 degrees with pain causing the functional loss. The Veteran described his flareups as involving effusions needing drainage after extra work, which would be repeated use over time. Again, this does not indicate significant additional loss of flexion or other range of motion. The Veteran also described functional loss, which was also noted a potential work impact, of difficulty lifting himself out of his vehicle due to a feeling of weakness, stiffness after sitting for long periods, and being unable to kneel or do deep knee bends. These movements would require more than 45 or even 90 degrees of flexion.  

The guidance on how to evaluate flareups has not been particularly clear. As a consequence, the Board finds that flareups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation, expanding the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, because there is a regulation addressing the stabilization of ratings, the Board finds that flareups must be of such length as to establish that the overall impairment is more severe than currently evaluated. Under 38 C.F.R. § 4.1, the degrees of disability specified by the ratings in diagnostic codes are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. 

In this case, the Veteran's statements do not show that flareups or repeated use over time additionally limited his flexion or extension in a quantifiable way other than as discussed above, or that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. VA examiners attempted to elicit this information, and the Veteran's reports during such examinations and at other times for his claim and for treatment, as summarized above, primarily reflect pain or soreness with certain motions and instability. This does not suggest a quantifiable additional loss of motion. As noted above, pain alone is not sufficient to constitute limitation of motion without resulting in additional functional loss, and painful motion alone does not constitute limited motion for the purposes of rating under the codes pertaining to limitation of motion for a particular disability, as opposed to assigning a minimum rating under DC 5003 or section 4.59. A medical opinion to estimate any additional degree of limitation during flareups or after repeated use would have no reasonable possibility of assisting in substantiating the claim. Therefore, the lack of any such opinion is not prejudicial to the claim. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 

As summarized above, the available medical evidence is sufficient to determine any additional functional loss during periods of increased symptoms due to flareups or repeated use over time. Other than as noted above, the Veteran's reports of exacerbation after repeated use or during flareups are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. 

The lay and medical evidence reflects significant flexion and extension to above the 10 percent level under DCs 5260 and 5261 despite increased pain or other factors. Thus, these factors did not result in a greater degree of functional loss or limitation than noted above to warrant a higher or separate rating for motion.  

Additionally, although the evidence reflects that the Veteran has used various pain medications and received steroid injections for his left knee at times, there is no suggestion that they reduced his symptoms to an extent to warrant a higher or separate rating when discounting their ameliorative effects. In particular, there is no suggestion that flexion would decrease to below 30 degrees or extension would decrease to 10 degrees or below, without medications, as required for a 20 percent rating for flexion or a 10 percent rating for extension. Instead, the Veteran indicated that he would take ibuprofen or other medications to ease his flareups after extended walking, stairs, including excessive use in work duties, such as in August 2013, January 2016, and May 2019 records. However, the additional limitation from the flareups or excessive use as noted above, including based on the Veteran's estimate of his additional loss, had already occurred at those points. 

In summary, there is no argument or suggestion of limitation of flexion to more nearly approximate 30 degrees or lower, as required for a rating of 20 percent or higher under DC 5260. Additionally, the Veteran's extension has been measured to 0 degrees (or full extension) throughout the appeal period, and he has complained primarily of pain with bending or flexion movements. A separate rating is not warranted on this basis. Moreover, as the Veteran has a minimum rating for painful or limited motion, which satisfies DC 5003 and section 4.59, a separate rating cannot be assigned for any painful or limited extension that does not meet the compensable criteria. See Sowers v. McDonald, 27 Vet. App. 472, 479 (2016); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Additionally, as there is some limitation of motion and only one service-connected joint is involved, the 20 percent rating criteria for arthritis under DC 5003 are not met. 

Meniscal Impairment

The Veteran was assigned a 10 percent rating for instability as a residual of meniscus surgery, under DC 5257, effective the date of his July 22, 2013, claim. Symptoms contemplated under this code are discussed below. However, a rating was not assigned under the meniscal codes, DC 5258 (meniscus tear or dislocation) and 5259 (meniscus symptoms after removal of meniscus, or meniscectomy). 

A separate rating is warranted on this basis, as the Veteran had additional non-overlapping symptoms from a left lateral meniscus tear pre- and post-removal. As discussed below, resolving reasonable doubt in the Veteran's favor, the evidence warrants a staged separate rating of 20 and then 10 percent for meniscal symptoms. 

The Veteran's pain with movement is already contemplated by his rating based on painful or limited flexion, as discussed above, and a separate rating on this basis would constitute impermissible pyramiding. However, he had nonoverlapping left knee symptoms of frequent pain without movement (including tenderness to palpation and medial and/or lateral joint line pain), locking, and swelling or effusion with use that are not already contemplated by his assigned ratings.

Historically, a January 2011 MRI of the left knee found both menisci normal. During a May 201l VA examination, the Veteran reported left knee symptoms including giving way and falling that begin about 2.5 months earlier and that he had been wearing a knee brace since that time, as well as "vague locking," weakness, swelling in the patellar region, stiffness at times, and loss of motion. He reported difficulty with weightbearing activities including standing and walking. The July 26, 2012, operative report again noted that both menisci were intact.

A few months later, the December 20, 2012, brief operative note identified a preoperative diagnosis of left knee patellar instability, and a postoperative diagnosis as the same plus a left lateral meniscus tear. The procedure performed was a scope with trephination of the lateral meniscal tear and left medial patellofemoral ligament reconstruction with allograft. The discharge diagnosis was left patellar instability. During an August 2013 VA mental health examination, the Veteran reported having a previous meniscus repair of his left knee and that it continued to "go out" on him. The August 2013 VA knee examiner summarized that the Veteran had a partial meniscectomy in December 2012, but the September 2020 VA examiner stated that he had a repaired meniscus in December 2012. 

Although there was no evidence or finding of an additional meniscus tear, the February 26, 2016, left knee operative report noted a lateral meniscus tear, and procedures performed at that time included a partial lateral meniscectomy. 

A July 2019 private treatment noted a prior meniscus tear and ligament reconstruction for the patella, and stated that the Veteran seemed to have a meniscus tear superimposed on early arthritic changes. He complained of pain, struggling with deep squatting activities, grinding, catching, giving way, and swelling. An MRI was ordered, which showed signs of a prior lateral meniscectomy without any signs of a new tear, and the medial meniscus was intact.

After both his December 2012 surgery that identified and repaired the lateral meniscus tear and his February 2016 surgery that partially removed the meniscus, the Veteran complained of constant left knee pain (including without motion at times), popping or locking or catching, swelling and effusion. He required drainage of fluid at times (primarily after overuse or repeated use over time), and he had tenderness to palpation of the joint lines or soft tissues at times as well as above and around the kneecap or patella. See, e.g., VA examinations in August 2013 and September 2020; private treatment records in May 2019, July 2019, August 2019, and March 2020. At times the Veteran's edema, effusion, and tenderness was attributed to end-stage arthritis of the patellofemoral joint or bursitis; however, these symptoms are not otherwise contemplated by his ratings. 

Based on the above evidence, the Veteran had a left knee lateral meniscus tear that was repaired, but not removed, in his December 20, 2012, surgery, and he had ongoing meniscal symptoms; this warrants a 20 percent rating under DC 5258. The operative report was the first factually ascertainable date of a meniscus tear; therefore, the 20 percent rating is warranted from that date (which is during his period of temporary total disability for his two knee surgeries), but not earlier. The Veteran continued to have left knee meniscal symptoms other than painful or limited motion and instability after that surgery. Then, he had a partial lateral meniscectomy or removal in his February 25, 2016, surgery, with continued meniscal symptoms. This warrants a staged decrease to 10 percent under DC 5259, as there was partial removal of the lateral meniscus and no new meniscus tear. 

Accordingly, a separate rating of 20 percent under DC 5258, effective December 20, 2012, through February 24, 2016; and 10 percent under DC 5259, effective since February 25, 2016, (excluding periods of temporary total rating) is granted. 

Instability and Subluxation 

The Veteran is currently assigned a 10 percent rating for instability under DC 5257, which addresses subluxation and instability under both versions of the code. He asserts that a higher rating is warranted for "major" instability due to frequent giving way and the need for a brace and cane. See, e.g., June 2014 VA Form 9.

Resolving reasonable doubt in the Veteran's favor, an increased rating of 20 percent is warranted for the left knee based on moderate recurrent subluxation (patellar dislocation) with instability since July 22, 2013, is warranted under the old version of DC 5257. A higher rating is not warranted under either version. 

The Veteran has given competent and credible descriptions of a frequent feeling or sensation of weakness, giving way, going out, or instability and that his left kneecap or patella would "pop out" or dislocate, particularly when bending his knee or walking, causing him to fall throughout the appeal period and earlier. 

The medical evidence, including operative reports in 2012 and 2016, show that this is due to recurrent patellar subluxation or dislocation. Records more than one year prior to the appeal period also noted patellar subluxation. An MRI in January 2011 for complaints of pain and giving out found mild lateral subluxation of the patella, but intact ligaments and normal menisci. During a May 2011 VA examination, the Veteran reported that his left knee began giving way about 2.5 months ago, and he had been wearing a left knee hinged brace and using a cane since that time. 

Although VA examiners in 2013 and 2020 stated that a residual of the Veteran's meniscal surgery in 2012 was instability (as noted above), the operative reports and other records reflect that there were multiple conditions addressed during surgeries: the lateral meniscus as well as the patellar ligament and chondromalacia.

The July 2012 operative report stated that the Veteran had previous patellar dislocations and had developed significant patellofemoral arthritis and wanted arthroscopic surgical management. The report noted that the menisci were intact, the lateral patella had chondromalacia and was debrided, and a lateral release was performed through ligamentous structures and the patella tracked well afterward. 

An October 2012 VA provider memorandum during the period of temporary total rating stated that the Veteran had left knee instability and needed further surgery. A physical therapy record in October 2012 noted that the Veteran's kneecap kept "popping out," and the patella shifted out laterally and superiorly with an audible "pop" and obvious pain on examination. The patella dislocated with exercises and motion, and physical therapy was put on hold until he saw a surgeon again.

The December 2012 brief operative note reflects a preoperative and postoperative diagnosis of left knee patellar instability. The procedures performed included left medial patellofemoral ligament reconstruction with allograft. During the August 2013 VA examination (within the temporary total rating period), the Veteran reported residuals of falling four times per week, wearing a hinged knee support or brace and using a cane constantly, and using a wheelchair occasionally with extended activities due to his left knee. Although the Veteran had full strength for flexion and extension of 5 out of 5, the examiner was unable to test for stability; he noted that a residual of the last 2012 surgery was instability. During an August 2013 VA mental health examination, he stated that his knee continued to "go out."

Shortly before his third surgery, a January 2016 VA treatment record noted that the Veteran's left knee had given out and caused him to fall twice in the last year, and he was advised to use his knee brace. The February 2016 surgery report noted a preoperative and postoperative diagnosis including left knee patellofemoral instability. The provider noted that the Veteran had two prior left knee surgeries for patellar instability, which included medial patellofemoral ligament reconstruction, and he was now having surgery for continued pain and recurrent instability.

In May 2016, during the temporary total rating period after this surgery, a VA treatment record noted that he had good stability and his patella tracked centrally.

In August 2016, VA treatment records reflect that the Veteran complained of left knee pain and needing a new brace after he had been working overtime. A November 2018 record noted that he was using his left knee brace and had difficulty walking when he first got up. A May 2019 private emergency record noted that x-rays showed no dislocation but mild degenerative changes. VA treatment records in May 2019 noted that the Veteran wanted a Donjoy dual stability brace again because his "normal" brace was not helping, and it was ordered. A May 2019 private emergency record noted that the Veteran used his knee brace at work and as needed otherwise and his knee was stable on examination. A July 2019 private record noted complaints of giving way at times, but testing for treatment showed no instability. Also in July 2019, a VA provider ordered a new left knee brace. An August 2019 private record noted that the Veteran reported pain but that he was not suffering from instability, and examination showed no instability. An MRI showed signs of a previous medial patellofemoral ligament reconstruction, chronic full-thickness chondral defects in the posterior femoral condyle, and chronic full-thickness cartilage fissuring of the patella and trochlea. A March 2020 private emergency record for swelling and drainage noted that the Veteran had not been wearing his knee brace, he had normal strength on examination, and x-rays showed no dislocation. The provider noted that he suspected the Veteran would continue with his high activity level (described as being on his feet at work) and advised him to wear his knee brace. 

In his May 2020 VA Form 21-8940 for TDIU, the Veteran reported that his left knee gives out all the time. During the September 2020 VA examination, he reported wearing his left knee brace occasionally or about three times per week when working out in the gym. Strength and stability tests were normal.

As noted above, the criteria under DC 5257 in effect prior to February 7, 2021, address recurrent subluxation (or patellar dislocation) and lateral instability. They do not give specific definitions of mild, moderate, or severe conditions. Instead, the Board must make the determination based on consideration of all evidence. Medical evidence is not automatically more probative than lay evidence. 

Resolving reasonable doubt in the Veteran's favor, the evidence supports a 20 percent rating based on moderate recurrent subluxation or patellar dislocation with instability, effective since the Veteran's July 22, 2013, claim under this code version. The Veteran had more than mild instability from patellar subluxation or dislocation because he fell at times and frequently required a brace and used a cane. However, he did not have severe instability or subluxation outside of temporary total periods for convalescence. The evidence reflects that he fell less frequently and only used his brace at times after recovery from the December 2012 second surgery that addressed his patellofemoral instability. Although he was noted to use a cane and wheelchair at times and stability could not be tested in August 2013, this was during his temporary total rating period (as granted in this decision) when he had not yet completed recovery and his condition was more severe. The Veteran's reports in his June 2014 relied mainly on the notations in that August 2013 VA examination. The records in January 2016 shortly before his third surgery noted less frequent falls of only twice in the last year, for which he was advised to use his knee brace. After the February 2016 surgery that again addressed instability, records noted good stability and patellar tracking, as well as no dislocation on x-rays, but the Veteran still had giving way and instability or subluxation and required a brace for stability that was ordered by his provider. Records in 2019 noted that he only used his brace at times, not constantly, and although he complained of giving way at times he had normal stability on testing. A 2019 MRI continued to show impairments of the patellofemoral complex, and although the Veteran continued to report giving way in his 2020 TDIU form, he had normal stability on testing and reported wearing his brace only a few times per week with exercise during the September 2020 VA examination.

Under the criteria effective since February 7, 2021, a rating under DC 5257 for recurrent instability expressly contemplates the claimant being prescribed an assistive device such as a cane, crutches, and/or a walker. However, those criteria require a sprain, incomplete ligament tear, or complete ligament tear for a rating, which is not shown in this case. Thus, a higher rating is not warranted on this basis. 

The new criteria for patellar instability under DC 5257 require a diagnosed condition involving the patellofemoral complex, which includes the quadriceps tendon, the patella, and the patellar tendon. A rating in excess of 10 percent requires recurrent instability after surgical repair. In this case, the Veteran's left knee surgeries in 2012 and 2016 involved repair of the patellofemoral complex (in addition to lateral meniscus repair or meniscectomy), and he continued to have recurrent instability and subluxation to varying degrees after those surgeries. Additionally, he has been prescribed a brace throughout the appeal period. Although he reported using a cane at times, primarily prior to his 2016 surgery, the medical records do not reflect that this was prescribed or required. Thus, the criteria for a 20 percent rating, but no higher, are met under this code; however, the Board's decision herein already awards a 20 percent rating under the prior code. 

Other Rating Considerations

Throughout the appeal period, there is no argument or indication of left knee ankylosis (DC 5256), tibia or fibula impairment (DC 5262), or genu recurvatum (DC 5263) to warrant a separate or higher rating under those diagnostic codes. 

Private treatment records in May 2019 and March 2020, when the Veteran was treated for bursitis or effusion with drainage of fluid, noted x-rays findings including surgical fixation screws in the proximal tibia and an "ununited" tibial tuberosity or "chronic fragmentation" of the tibial tuberosity superior margin. However, these findings do not suggest malunion or nonunion of the tibia, which involves a fracture that did not heal properly. Additionally, the evidence does not show that the Veteran needed a brace or had loose motion or other knee impairment due to this finding, as required for a rating under both versions of this code. 38 C.F.R. § 4.71a, DC 5262 (2017 & 2020). Instead, the Veteran's need for a brace and cane, instability or giving way, and other functional impairment were medically attributed to his meniscal impairment and patellar dislocation or subluxation, as contemplated by his other ratings discussed above. 

Finally, the Veteran's left knee surgical scars from 2012 and 2016 are not symptomatic or otherwise compensable. Although the rating criteria for scars were amended effective August 13, 2018, they are essentially the same as relevant to this case, and neither version is more favorable. The Veteran has not complained of his scars, and the evidence in treatment records and VA examinations consistently shows that his left knee scars are well-healed, small, and asymptomatic. They are not painful or unstable, there is no suggestion that they are "deep" scars or are associated with underlying soft tissue damage, they do not measure at least 144 square inches (929 square cm), and there is no suggestion of disabling effects due to scarring. See, e.g., August 2013 VA examination (two scars), September 2020 VA examination (three scars). Therefore, a separate compensable rating is not warranted on this basis. See 38 C.F.R. § 4.118, DCs 7801 to 7805 (2017 & 2020).

In summary, the Veteran's left knee disability warrants separate or increased ratings as noted above, which are partial grants. Otherwise, his left knee manifestations were relatively stable during each period, and any increases in severity were not sufficient to meet the criteria for a higher or separate rating. The preponderance of the evidence is otherwise against a higher or separate rating, and there is no reasonable doubt to be resolved in his favor. The appeal is otherwise denied.

6. Extension of a temporary total rating for the December 20, 2012, left knee surgery past June 30, 2013

The Veteran has had three left knee arthroscopic surgeries: on July 26, 2012, December 20, 2012, and February 25, 2016. He was granted a temporary total rating based on surgery and convalescence for each of these surgeries. See rating decisions in November 2012, March 2013, May 2013, and May 2016. The temporary ratings and extensions for the July 2012 and December 2012 overlapped, and he was granted extensions through June 30, 2013, after the December 2012 surgery. He seeks an additional extension of this temporary total rating. As explained above, the 2016 temporary rating is not before the Board. 

An October 2013 rating decision denied an extension of the temporary total rating for the December 2012 left knee surgical convalescence past June 30, 2013. 

In his July 2013 claim for another extension, the Veteran stated that he was still in physical therapy, still required a cane to walk, and was unable to work due to service-connected disabilities. In his October 2013 notice of disagreement, the Veteran asserted that he still warranted a temporary total rating because an MRI had been scheduled to determine why his left knee had not recovered and whether another surgery would be required. In his June 2014 VA Form 9, he contended that he had major instability in the left knee, wore a brace all the time and used a cane, was still receiving treatment from a surgeon, and may need another surgery. 

A temporary total rating may be assigned based on convalescence if treatment of a service-connected disability results in: (a) surgery necessitating at least one month of convalescence; or (b) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (c) immobilization by cast, without surgery, of a major joint. 38 C.F.R. § 4.30. The total rating will be effective from the date of hospital admission or outpatient treatment, and will continue for a period of one, two, or three months from the first day of the month following the hospital discharge or outpatient release (with a possible extension beyond an initial three months), followed by a schedular evaluation under the appropriate code. Id.

The May 2018 Board remand directed that a VA examiner be requested to address whether the Veteran had severe post-operative residuals after his December 2012 left knee surgery. In a January 2021 addendum report, a 2020 VA examiner found no evidence of severe post-operative residuals; however, the reasoning was based on the Veteran's findings and reports as to his current function and examination, which was also after another left knee surgery in 2016. This opinion is unhelpful. Nevertheless, the medical evidence of record is sufficient to determine the nature and severity of the Veteran's left knee disability closer in time to his December 2012 surgery. Another remand for a medical opinion in this regard is unnecessary.

As discussed below, the evidence reflects a level of convalescence to warrant an extension of the temporary total rating until September 30, 2013, but no further.

An April 24, 2013, letter from one of the Veteran's VA providers stated that he was in rehabilitation for his left knee, should be starting physical therapy soon, and would be reevaluated in three months. The provider recommended that his temporary total rating be extended for three months (or through approximately July 24, 2013). As noted above, the Veteran was granted an extension of the temporary 100 percent through June 30, 2013, followed by the prior 10 percent knee rating. 

A June 14, 2013, VA treatment record noted that the Veteran was still in physical therapy for his left knee. He reported chronic and constant left knee pain rated 7 out of 10, and he was using ibuprofen but had been off other pain killers since December 2012. Examination showed limited range of motion and tenderness.

A July 19, 2013, statement from a VA physical therapist stated that the Veteran was still in monitored physical therapy and unable to work, he would be reevaluated in two months, and he could not return to duty until September 30, 2013. 

As noted above, an August 6, 2013, VA examination for the knees noted the June 2013 VA treatment record summarized above and the Veteran's history of surgeries in July 2012 and December 2012, with residual episodes of falling four times per week, and constant use of a brace and cane. The Veteran also reported using a wheelchair occasionally with activity such as in an amusement park due to his left knee. Muscle strength was 5 out of 5, but stability could not be tested, and the examiner noted that a residual sign of the partial meniscectomy done in December 2012 was instability. The Veteran described limitations with walking, standing, and carrying items; and constant dull or sharp pain that was worse or flared up to severe several times per week after using stairs or walking more than 0.5 miles, which would also reflect the effects of repeated use over time. Similarly, there was additional limitation of necessary activities and flexion movements to approximately 45 degrees during flareups. The Veteran was in school and reported missing 3 to 4 class periods over the past month due to his left knee. The examiner stated that there was no work impact, explaining that the Veteran was a full-time student and had computer skills. However, the impact on schooling is also relevant. Notably, the Veteran was also in school during his prior periods of temporary total disability for his left knee surgical convalescence since July and December 2012, as he received VA benefits for schooling from January 2012 through May 2014.

The Veteran reported that he had last been seen in July 2013 and had another appointment on September 18, 2013, with consideration for another operation. This appears to be private treatment, as there are no VA records for those dates. The Veteran did not authorize or supply any such private treatment records for his knee, but he did not have another left knee surgery in 2013 or until February 2016. 

There are no more records of treatment for the left knee over the next several months. In February 2014, the Veteran filed a formal claim for a TDIU, although he was in school. As noted above, in his June 2014 VA Form 9, the Veteran again reported using a brace and cane constantly due to instability in the left knee, stated that he was still receiving treatment from a surgeon, and may need another surgery.

For comparison, during the period in which the Veteran's temporary total rating for his prior surgery in July 2012 was extended, an October 2012 physical therapy record noted that he was having left knee pain rated 5 out of 10, and he had full range of motion but with severe pain because his kneecap kept popping out or shifting, including as observed by the provider on examination. He was having pain and dislocation of the kneecap with exercises including knee flexion and terminal knee extension, despite range of motion from 0 to 120 degrees. The therapy goal was to decrease his pain to 3 to 4 out of 10 and increase his strength and have active range of motion from 0 to 120 degrees. This plan was on hold until the Veteran saw a surgeon, and he had his second surgery in December 2012.

Resolving reasonable doubt in the Veteran's favor, an extension of his temporary total rating is warranted through September 30, 2013, but no further. As summarized above, the April 2013 letter from a VA provider anticipated a recovery period until at least the end of July 2013, with potential continued recovery, and his VA physical therapist indicated that he should not return to work (or similar duties) until September 30, 2013. He had also missed some schooling through at least the August 2013 VA examination and had such a degree of instability that it could not be tested during the examination. Thus, he was still in a convalescent period. 

There were no severe post-operative residuals as contemplated by section 4.30. There is no evidence of incompletely healed surgical wounds, amputation, therapeutic immobilization, a body cast, the necessity for house confinement, or prohibition of weightbearing to require ongoing use of a wheelchair or crutches. Although the Veteran continued to use a brace and cane, and he occasionally used a wheelchair with significant activity, he was able to bear weight on his left knee. 

Although the Veteran continued to have left knee pain and other limitations for the rest of 2013 and subsequently, including instability as discussed above, the evidence does not show ongoing convalescence or severe post-operative residuals from the December 2012 surgery, versus longstanding concerns. Instead, that impairment is supported by his individual ratings for his left knee impairment. 

Overall, the evidence is at least in relative equipoise as to an additional extension of the temporary total rating for the Veteran's December 2012 left knee surgery effective from July 1, 2013, until September 30, 2013, under 38 C.F.R. § 4.30. Therefore, reasonable doubt is resolved in the Veteran's favor and the appeal is granted to that extent. However, there evidence does not support a further extension past that date, and the appeal is otherwise denied.

4. Entitlement to a TDIU

An October 2013 rating decision denied a July 2013 claim for a TDIU. The Veteran primarily contends that he has been unable to work at times during his appeal due to his left knee, although he also listed his hearing loss and psychiatric or mental health disabilities in his February 2014 TDIU claim form (VA Form 21-8940).

A TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, a schedular percentage threshold must be met. If there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. However, VA may still grant TDIU on an extraschedular basis if this threshold is not met if the evidence shows unemployability due to service-connected disabilities. 38 C.F.R. § 4.16.

In determining unemployability, there is an economic component, which includes whether any employment was marginal, and a non-economic component, which includes mental and physical capacity based on occupational history, education, skills, and training. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Consideration should be given to prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Gleicher v. Derwinski, 2 Vet. App. 26 (1991); Pederson v. McDonald, 27 Vet. App. 276 (2015). The sole fact that a claimant 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. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

Considering the additional left knee awards granted in his Board decision, the Veteran has met the schedular percentage threshold for a TDIU effective since October 22, 2013, with one disability rated at least 40 percent and other disabilities to combine to 70 or more percent. The Veteran is service-connected for a mental health or psychiatric disability, rated 50 percent effective since February 4, 2013. With the Board's additional awards, his other disabilities combine to 70 percent under 38 C.F.R. § 4.25. The left knee is now rated 10 percent based on painful or limited motion, effective since February 7, 2008; 20 percent based on instability, effective since July 22, 2013; and 20 percent based on meniscal symptoms, effective since July 22, 2013, then 10 percent since February 25, 2016 (excluding temporary total periods). The Veteran's tinnitus is rated 10 percent and left ear hearing loss is rated noncompensable effective since October 22, 2013.

However, the evidence does not show unemployability for VA purposes. As noted above, the Veteran's TDIU claim (and underlying rating claim) was received in July 2013; therefore, the period from July 2012 forward is most relevant for TDIU.

As directed in the May 2018 Board remand, VA requested the Veteran to provide his work history and income for the years for which he is requesting a TDIU, as well as attempted to obtain relevant information as to his earned income. 

In May 2020, the Veteran submitted another VA Form 21-8940 with current and former employment, salary, and education information. In 2020 and 2021, VA requested information from his recent employers to determine if there was marginal employment. In November 2020, a private medical center where he had worked as a security officer responded that he had no time lost in the past 12 months through October 2020 and was not working but was in emergency call-back status. VA also unsuccessfully attempted to obtain human resource records from the VA medical center at which he was working, VA police and the National Personnel Records Center (NPRC) annex, and he was notified of these efforts. An April 2021 VA treatment record noted that the Veteran continued to work for VA. 

There is no suggestion that any additional development would aid in this claim. The Veteran's reported incomes since 2004 are clearly above the poverty level, as noted in February 2014 and May 2020 VA Forms 21-8940 discussed below. There is also no argument or suggestion of a protected work environment at VA or otherwise, particularly since he completed law enforcement academy. Therefore, none of his prior or current employment positions constitute marginal employment.

More specifically, the Veteran reported in his February 2014 VA Form 21-8940 that  he last worked full-time and became too disabled to work in March 2011. Records show that he was in school from January 2012 through May 2014. In May 2020, he submitted an updated VA Form 21-8940 noting full-time work since January 2016. 

The evidence of record primarily reflects a work history after service as a police officer or security guard and as a car salesman. The Veteran reported working as a security officer from 2000 to 2004 and as a car salesman at several dealerships from 2004 to January 2011. However, he has also described working as a police officer for about 8.5 or 9 years after service, or from about 1998 until sometime between 2006 and 2008. During a May 2011 VA knee examination, he reported working as a police officer for 8.5 years until about 4.5 years prior to that examination, but during an August 2013 VA mental health examination he reported working as a police officer for 9 years until 2008. In 2012 and 2014 reports, the Veteran also stated that he worked as a police chief for a small town for three months in 2008 and as a furniture salesman from January 2011 through March 2011. He unsuccessfully attempted tried to obtain employment in auto sales in May 2011. See, e.g., February 2014 VA Form 21-8940, January 2012 VA rehabilitation needs inventory, VA examinations in May 2011 (knees) and August 2013 (knees and mental health), employer responses in May 2014 (for work at two car dealerships from 2007 to 2009), and VA treatment record in January 2013.

In February 2014, the Veteran reported his education as a high school degree and three years of college, that he completed police academy training in 2001, and that he was attending college using his VA Chapter 31 benefits from 2013 to 2014. 

The evidence reflects that the Veteran attended school full-time from January 2012 through May 2014, using VA Chapter 31 educational and Vocational and Rehabilitation benefits based on plans in January 2012 and January 2013. The initial plan was to be a physical therapy assistant, pursuing an associate's degree, with an amended plan to be a social studies teacher, pursuing a bachelor's degree. He did not complete his degree, as his GPA decreased until he stopped attending. His VA educational and Vocational and Rehabilitation benefits were stopped in January 2016 due to his failure to continue or reply to attempts to contact him.

The Veteran has been working full-time since January 2016, except during his period of convalescence or recovery from his February 2016 left knee surgery. In his May 2020 VA Form 21-8940, he reported working as a security officer for private facilities from January 2016 through September 2019, and as a police officer for VA facilities since September 2019 forward. He also completed law enforcement academy in October 2019. These reports are consistent with notations in his treatment records. See e.g., VA records in January 2016 (working as a security officer), May 2016 (back at work), August 2016 (working at a correctional facility), and April 2021 (working at a VA facility); private records in May 2019 (used a knee brace at work) and March 2020 (working as a police officer).

In his February 2014 VA Form 21-8940, the Veteran asserted that his left knee, hearing loss, and mental health disability had prevented full-time work since March 2011. However, he has primarily described difficulties due to his left knee. In his May 2020 VA Form 21-8940, he asserted that he should be awarded a TDIU despite being employed because his work and homelife were extremely difficult and painful due to pain and mobility issues. He stated that he seeks emergency treatment at least once every three months to have a large amount of fluid drained from his knee and his knee gives out all the time, which could become dangerous.

Overall, the evidence does not reflect that the left knee disability alone (or with his service-connected left ear hearing loss, tinnitus, and/or mental health disability) has prevented the Veteran from obtaining or maintaining substantially gainful employment consistent with his prior education, training, and work history.

There is no suggestion that the Veteran's left ear hearing loss or tinnitus (ringing in the ears) have affected his employment more than minimally or prevented him from obtaining or maintaining employment alone or with his other conditions. 

There is also no suggestion that the Veteran's mental health disability has resulted in his periods of unemployment or inability to obtain or maintain employment. Although he is rated 50 percent disabled on this basis, there is no argument or suggestion that he lost jobs or was unable to obtain them due to his mental state. 

Instead, the evidence reflects that the Veteran had resigned from prior positions due largely due to physical impairments from his bilateral knees and his back, although only the left knee is service-connected. The Veteran's prior claim for service connection for a right knee disability was denied in 2008, and he has not claimed service connection for a back disability. He also reported reasons for leaving prior positions other than disability or impairment, such as declining business. Additionally, since January 2016, the Veteran has again been able to work in security or police officer positions despite significant ongoing left knee complaints. 

For example, VA treatment records in February and March 2011, or around the time of the Veteran's last employment prior to 2016, reflect both right and left knee complaints, but focus on the right knee as being more problematic currently. A February 2011 record noted that the Veteran had a MRI of both knees in January 2011 and was still having problems. He reported that his left knee had given out, causing him to fall to the ground, twice in the prior week and several times in the past month. Primary care and orthopedic surgery consult records in March 2011 noted that the Veteran was seen primarily for his right knee, with no specific injury but pain for years. He reported episodes of instability for the right knee that was helped significantly by an ACL brace. The Veteran reported chronic pain for 10 to 13 years, and a current pain at a level 6, with an average of 5.5, and the worst of 10 out of 10. Pain was worse with walking and standing and interfered with activities of daily living and mobility. The assessment was bilateral knee osteoarthritis, right knee torn ACL and collateral ligament, and left knee recurrent patellar dislocation. He was not a candidate for a knee replacement, but the plan was to replace his right knee collateral ligament medial and lateral during surgery if it was torn and bad, and the left knee would be discussed further after the right knee surgery. An April 2011 record noted that the Veteran had severe pain when standing; he had fallen while mowing and this morning and had heard a loud pop in his left knee.

During a May 2011 VA examination for the knees, the Veteran reported working for about 8.5 years as a police officer with no knee injuries, although he frequently had foot chases in irregular terrain and altercations with suspects. He reported increased knee pain in 2001 or 2002, but that he had stopped working full-time in that position about 4.5 years ago because his K-9 dog had died. The Veteran also reported a significant change in his left knee approximately 4.5 years ago with increased pain and that he started having regular left knee care in December 2008. The Veteran stated that he wore bilateral knee braces all the time except when sleeping, his left knee had been giving way causing him to fall for beginning about 2.5 months earlier, and he was having moderate flareups a few times per week after mowing the yard or shopping for 2 hours, which limited weightbearing activities.

An October 2011 VA operative report reflects a surgery for a right knee ACL tear and right knee pain; he underwent an ACL reconstruction with hamstrings autograft and arthroscopy with patella chondroplasty. The report notes that he had a right knee injury one year ago and patellofemoral dislocation, continued anterior pain and some instability in the right knee, and an MRI (in January 2011) showed an ACL tear and changes in the patella. Surgery was performed to decrease arthritis, pain, and instability, although risks included chronic pain. (Although some other records or examinations stated that the Veteran had a total right knee replacement or a left knee surgery in 2011, those are not supported and inaccurate.) 

During a January 2012 VA rehabilitation needs inventory, the Veteran complained of bilateral knee pain and back pain, stating that he had recently had a right knee surgery and would have a left knee surgery in the future. A January 2012 VA rehabilitation counselling narrative then reflects that Veteran was on convalescence for his right knee surgery, and his knee and low back pain prevented him from returning to his prior employment with unsuitable ambulatory tasks. The Veteran reported being unemployed for the past year due to bilateral knee pain, and that his ambulation had greatly improved due to his recent right knee surgery. He felt that he was now able to work, but not to return to his prior jobs. He also had depression and anxiety related to pain in the bilateral knees and back; however, the narrative noted physical impairments, not mental, for determining suitable work or training. The narrative noted difficulty with heavy lifting, frequent or prolonged standing, squatting, kneeling, climbing, sitting, and lifting. The Veteran stated that he could not retain his prior employment after the police academy due to his knees (not just his left knee). The narrative stated that service-connected disabilities prevented him from chasing or restraining an assailant, getting in and out of cars all day, walking on car lots most of the day, lifting or carrying heavy furniture all day, and performing boatswain's mate duties (which was his primary duty in service). This report does not distinguish the left knee from nonservice-connected conditions.

During an August 2013 VA mental health examination, the Veteran reported that he had stopped working as a police officer in 2008, well before the period on appeal, due to the high stress nature of that job; and that he had stopped working at car dealerships due to a decline in business and difficulty with prolonged standing and needing to use a cane due to knee problems. The Veteran stated that he was currently attending school Monday through Friday and was obtaining mostly A or B grades, although he had failed or nearly failed several classes due to frequent absences and had to retake those classes. An August 2013 VA examiner for the knees found no work impact because he was in school and had computer schools, although there were functional impairments noted. As noted above, the Veteran continued to receive VA educational benefits for college-level courses through May 2014, when he stopped attending and did not return VA attempts at contact. The ability to complete these types of higher level courses, particularly with mostly high grades of As and Bs, reflects a significant level of mental capacity. 

The Veteran reported in March 2014 and in his June 2014 VA Form 9 that he had quit one of his car dealership positions, as noted by the employer, due to missing work for doctor appointments and so he wouldn't be fired due to his left knee. The responses from those employers received in March 2014 were for positions in 2007 and 2009, several years prior to the relevant period for the appeal since 2012. 

As noted above, the Veteran reported in earlier VA examinations that he had been unemployed since 2011 due to a decline in business at the car dealership in addition to knee problems; and his treatment records and VA rehabilitation records noted right and left knee problems as well as back pain that affected that position.

As noted above, the Veteran has been awarded a temporary total rating based on his extended left knee surgical convalescence from July 26, 2012, through September 30, 2013 (including the award in this decision), for two surgeries in July 2012 and December 2012. He was awarded another temporary total rating based on his left knee surgical convalescence from February 26, 2016, through May 30, 2016. Thus, a TDIU based on his left knee impairment is moot for those periods.

Additionally, the Veteran has been working full-time since January 2016 as a security officer or police officer despite his ongoing left knee pain and instability, with the exception of his period of convalescence for his February 2016 surgery with a temporary total disability rating on that basis through April 30, 2016.

A January 2016 VA treatment record noted that the Veteran was working as a security officer and had left knee pain, crepitus, restricted motion due to pain, and had a brace on. His left knee had given out causing him to fell twice in the past year, and he was advised to use his knee brace. 

VA treatment records in August 2016 noted that the Veteran was working at a correctional facility and was on a 6-month assignment out of state. He had been working overtime of 150 hours over the past two weeks, and he was having left knee pain and wearing a brace. Relevant to his mental health, the Veteran was irritable and having difficulty sleeping due to working overtime, although generally he could sleep for 6 to 7 hours consecutively, and he had low energy due to his work schedule and some depression from missing his family.

In March 2020, two private emergency treatment records and a VA followup record noted that the Veteran went to the emergency room twice and had fluid drained from the knee. He was working as a police officer for a VA facility and did a lot of foot patrols and was on his feet quite frequently with long shifts. He also reported picking up extra work recently and was on his feet more than usual, and that he had "torqued" his left knee and was having pain and swelling. The Veteran reported chronic problems with the left knee and having fluid drained about every 6 months when he "over does it." He had a knee brace but was not wearing it, and he had been seen by orthopedics in the past but not recently. On examination, the Veteran had normal range of motion and strength, mild edema and obvious swelling. The provider stated that there was an effusion from overuse and underlying arthritis. The impression was suprapatellar bursitis, and the provider suspected that he would continue with high activity and recommended wearing his knee brace rest, ice, compression, and elevation, and following up with his orthopedic provider.

During a September 2020 VA examination for his knees, the Veteran again reported needing to have his left knee drained about twice a year due to effusion, with the last time being in March 2020 as reflected in his treatment records. He reported constant left knee pain, frequent swelling, occasional locking and grinding. He wore his left knee brace occasionally or about three days per week when working out in the gym. Flareups were described by referencing the need for drainage due to swelling or effusion when he did extra police work, occurring twice per year of moderate severity with duration of approximately one day. The Veteran reported functional loss, also noted as work impact, of difficulty lifting himself up when getting out of his vehicle due to a feeling of weakness in the knee, stiffness after sitting for long periods, and being unable to kneel on the left knee or deep knee bend. He had lost 0 to 1 week of work in the last 12 months due to his left knee.

VA treatment records through April 2021 reflect ongoing left knee pain.

In summary, the preponderance of the evidence is against entitlement to a TDIU at any point during the appeal period. The fact that he was unemployed at times does not mean that he was unemployable due to service-connected disability. There is no reasonable doubt to resolve in the Veteran's favor, and the appeal is denied.

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Wheatley

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.