Citation Nr: 21075649 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 10-42 623 DATE: December 21, 2021 ORDER Entitlement to a rating in excess of the currently-assigned 30 percent disability rating for the Veteran's service-connected right knee disability is denied. Entitlement to a separate rating of 10 percent, but no higher, for the Veteran's service-connected right knee disability based on instability is granted, effective March 26, 2009, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, effective August 31, 2012, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's current 30 percent disability rating was awarded by the agency of original jurisdiction (AOJ) in July 2009 to compensate limitation of motion of the right knee. 2. The evidence during the appeal period does not support a finding that limitation of motion has been so severe as to warrant higher or separate ratings based on limitation of flexion or extension, and a separate rating under Diagnostic Code 5003 would result in impermissible pyramiding. 3. Throughout the appeal period, the Veteran's service-connected right knee disability has manifested in no more than mild lateral instability. 4. The evidence of record supports a finding that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from August 31, 2012. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for service-connected right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261, 5262. 2. The criteria for a 10 percent disability for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020). 3. The criteria for an award of a TDIU are met from August 31, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to March 1987. I. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pyramidingthat is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codesis to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2020). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Pursuant to Diagnostic Code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. For the purpose of rating disability due to arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). Under Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion of the knee limited to 30 degrees; and a 30 percent rating is warranted for flexion of the knee limited to 15 degrees. Id. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension of the knee limited to 15 degrees; a 30 percent rating is warranted for extension of the knee limited to 20 degrees; a 40 percent for extension of the knee limited to 30 degrees, and 50 percent for extension of the knee limited to 45 degrees. Id. During the pendency of the appeal, VA revised the rating criteria for Diagnostic Code 5257 and 5262, effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under former Diagnostic Code 5262, a 10 percent rating is warranted when there is evidence of malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted when there is evidence of malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted when there is evidence of malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted when there is evidence of nonunion with loose motion, requiring a brace. Id. Under the revised version of Diagnostic Code 5262, a 40 percent rating is warranted when there is evidence of nonunion of the tibia or fibula with loose motion requiring a brace. For malunion, the code directs to rate the knee under Diagnostic Codes 5256, 5257, 5260, or 5261, whichever results in the higher evaluation. Under the former rating criteria, a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability of the knee; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. The Board observes that the words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." See 38 C.F.R. § 4.6. Effective February 7, 2021, Diagnostic Code 5257 was revised. Under the revised rating criteria, a 10 percent disability is warranted for: 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. Alternatively, a 10 percent rating is also warranted 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 disability rating is warranted for one of the following: a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribed a brace and/or assistive devise (e.g. cane(s), crutch(es), walker for ambulation; or b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g. cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent disability rating is also warranted 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, cane, or walker. A 30 percent disability rating is warranted for unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribed both an assistive device (e.g., cane(s), crutch(es), walker). Alternatively, a 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (effective February 7, 2021). Note (1) to Diagnostic Code 5257 indicates that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) to Diagnostic Code 5257 notes that 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). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). By way of background, service connection for the Veteran's right knee disability was granted in an April 1992 rating decision, and a noncompensable rating was assigned under Diagnostic Code 5257, effective April 24, 1992. In a December 1993 rating decision, the AOJ awarded a 10 percent disability rating under Diagnostic Code 5257 for the Veteran's right knee disability for painful motion, tenderness to palpation, and trouble with weight bearing. The Veteran then perfected an appeal to the Board regarding the initial rating assigned to his right knee disability. In a March 1996 decision, the Board awarded an initial 20 percent disability rating under Diagnostic Code 5257. In doing so, the Board noted that the 20 percent rating was being assigned because there was evidence of a slight impairment demonstrated by crepitus on motion, as well as evidence on X-ray of some degenerative changes. Later in the decision, the Board indicated that, consistent with the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), it was assigning a 10 percent extraschedular rating for the functional loss due to the pain associated with the Veteran's right knee disability. In March 2009, the Veteran filed a claim for an increased rating for his right knee disability. In the July 2009 rating decision on appeal, the AOJ awarded an increased rating, on a schedular basis, to 30 percent under Diagnostic Code 5003-5262, effective March 26, 2009, the day his claim for an increased rating was received. See 38 C.F.R. § 4.71a. In assigning the rating, the AOJ noted that it was being awarded based on evidence of "marked limited motion." The Veteran disagreed, and perfected this appeal. The Veteran underwent a VA examination in April 2009, and it was noted that the Veteran did not suffer from episodes of dislocation or any recurrent subluxation, and there was no ankylosis. The Veteran's range of motion was zero degrees to 87 degrees with pain present at 65 degrees. Testing of the ligaments was normal and McMurray's test was negative. The examiner noted that pain was present during range of motion testing; however, there was no evidence of fatigue, weakness, lack of endurance, or incoordination. Furthermore, while there was objective evidence of painful motion, there was no objective evidence of edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement. Following repetitive use testing, the Veteran's range of motion was further limited to 65 degrees. The examiner then noted that the Veteran had a decreased stride length, and that he had difficulty standing. The examiner also noted that the Veteran had degenerative joint disease. As for the functional effects of the Veteran's disability, the examiner noted that he was work at a desk job, and that he used all of his sick leave due to his service-connected lumbar spine disability. However, he was unable to state how his right knee disability affected his occupation or daily activities. In his August 2009 notice of disagreement, the Veteran reported that he was prescribed two knee braces by the VA. In September 2010, the Veteran underwent another VA examination, and he reported sharp pain from the medial knee to the lateral knee. He also reported that it would give out at times with a sharp pain just above the knee cap. He also reported grinding, and he stated that his treatment providers informed him of a patellar tracking problem. He stated that his knee would give out on him twice a year. He reported that he used braces for his knee, that he limited his activity, and that he participated in an exercise program. His reported symptoms included giving way, instability, pain, stiffness, and weakness. The Veteran also reported flare-ups of a moderate severity that occurred every one to two months, and lasted one hour at a time. He also reported avoiding stairs. The examiner then noted that the Veteran experienced incapacitating episodes of arthritis three times per year, that he was only able to stand for one hour at a time, that he was only able to walk for one to three miles, and that he used a brace intermittently. The examiner also noted that his gait was antalgic, and that there was crepitus, tenderness, and abnormal motion upon examination. There was also grinding, but there was no instability. Range of motion testing revealed flexion to 122 degrees, and extension to zero degrees. Following repetitive use testing, there was objective evidence of pain, but there was no additional limitation of motion. There was no evidence of ankylosis. The examiner then noted that the Veteran was currently employed, but that he lost twenty-four weeks from work due to neck surgery. After for the functional impairment associated with the Veteran's disability, the examiner noted that it caused mild effects with chores, shopping, recreation, and driving; that it caused moderate effects with exercise and traveling; and that it prevented sports. An August 2011 VA treatment record noted that the Veteran's right knee had given out on him within the last twelve months. In June 2012, the Veteran underwent another VA examination, and the examiner noted a diagnosis of degenerative knee joint disease. The Veteran reported flare-ups caused by squatting and running. Upon examination, the Veteran's right knee range of motion was flexion to 110 degrees with no objective evidence of painful motion; and extension to zero degrees with no objective evidence of painful motion. His range of motion was the same following repetitive-use testing, but the examiner noted that contributing factors limiting his functional ability included less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing. There was pain on palpation, but muscle strength testing and joint stability testing were normal, and there was no evidence of a history of recurrent patellar subluxation/dislocation. The Veteran was noted to occasionally use a brace due to knee pain, arthritis was demonstrated by imaging studies, and his right knee disability was noted to interfere with his ability to work such that he experienced pain with running and squatting when lifting. In April 2015, the Veteran underwent another VA examination, and the examiner noted a diagnosis of degenerative arthritis in the right knee. The Veteran reported constant knee pain that he rated as a four to five out of ten. And he described the pain as like an ice pick going through the lower medial aspect and coming out of the upper lateral area. He also reported flare-ups once a week that were sharp and lasted for a few seconds. The Veteran reported that he was able to walk 1.5 miles on a treadmill, he had to stop to rest going up or down a flight of stairs, and he stated that he lived on a farm and worked with animals. Upon examination, the Veteran's right knee range of motion was flexion to 110 degrees and extension to zero degrees with evidence of pain on flexion, as well as objective evidence of localized tenderness or pain on palpation; however, there was no evidence of pain with weight bearing or crepitus. His range of motion was the same following repetitive-use testing. Muscle strength testing was normal, and there was no evidence of ankylosis. Joint stability testing was normal, and there was no evidence of a history of recurrent subluxation or lateral instability. The Veteran was noted to occasionally use a brace due to knee pain, and his right knee disability was noted to interfere with his ability to work such that jobs requiring walking up an inkling or going up multiple flights of stairs would be painful. In October 2017, the Veteran underwent another VA examination, and the Veteran reported a three out of ten in the pain scale, and he noted that pain increased with prolonged sitting and driving. The Veteran also reported flare-ups once a week when his pain would increase to a six out of ten, and it would last four to five hours at a time. Upon examination, the Veteran's right knee range of motion was flexion to 140 degrees and extension to zero degrees with no evidence of pain on motion, no pain with weight bearing, no objective evidence of localized tenderness or pain on palpation, and no crepitus. The Veteran was unable to perform repetitive use testing due to pain in his low back that increased with movements of the leg. Muscle strength testing was normal, and there was no evidence of ankylosis. Joint stability testing was normal, and there was no evidence of a history of recurrent subluxation or lateral instability. The Veteran was noted to occasionally use a brace due to knee pain. A May 2019 VA treatment record noted that the Veteran was fitting and issued a right knee wrap around support. In December 2020, the Veteran underwent another VA examination. He reported flare-ups with walking and standing. He stated he could not walk for more than 10 minutes, he could not run, and it was impossible for him to use the stairs. Upon examination, the Veteran's right knee range of motion was flexion to 75 degrees and extension to zero degrees with evidence of pain on flexion. There was also objective evidence of mild localized tenderness or pain on palpation to the medial and lateral knee, along with pain with weight bearing; however, there was no objective evidence of crepitus. The Veteran's range of motion was the same following repetitive use testing, and the examiner indicated that he would experience additional pain with repetitive use and/or flare-ups, although his range of motion was likely be the same. Muscle strength testing was normal, and there was no evidence of ankylosis. Joint stability testing was normal, and there was no evidence of a history of recurrent subluxation or lateral instability. The examiner noted that the Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran was noted to constantly use a brace and cane due to knee pain. As for the functional impairment associated with the Veteran's disability, the examiner noted that he could not stand for more than ten to fifteen minutes at a time, and could not engage in physical activity due to pain. The examiner then noted that there was objective evidence of pain with non-weight bearing, and that his passive range of motion was the same as his active range of motion In July 2021, the Veteran underwent another VA examination, and he reported a dull constant pain on the side of his knee. He also reported flare-ups on a weekly basis that lasted two hours to two days. Precipitating factors were stepping wrong or jarring the knee, and he described his symptoms as severe. He reported problems with kneeling, as well as problems with instability. Upon examination, the Veteran's right knee range of motion was flexion to 110 degrees and extension to xero degrees with evidence of pain on flexion. Passive range of motion was the same, and there was evidence of pain with active and passive range of motion that caused functional loss and limited mobility. There was also objective evidence of moderate localized tenderness or pain on palpation to the medial and lateral knee, along with crepitus. The Veteran's range of motion was the same following repetitive use testing, and the examiner estimated that his range of motion would be further limited to 100 degrees flexion and five degrees extension following repetitive use or during flare-ups due to pain. There was no evidence of muscle atrophy or ankylosis. There was no evidence of recurrent subluxation or persistent instability or a ligament tear, and the Veteran did not have a prescription by a medical provider for a cane, walker, crutches, or a brace. The examiner noted that the Veteran did not have recurrent patellar instability, and there was no evidence of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran was noted to regularly use a brace and occasionally use a cane. As for the functional impairment associated with the Veteran's disability, the examiner noted that Veteran was limited in walking on uneven surfaces, climbing up and down stairs, and driving for long periods. As noted above, the Veteran's right knee disability, characterized as residuals of a right knee injury with degenerative joint disease, has been rated 30 percent disabling for all times pertinent to the appeal under Diagnostic Code 5003-5262. The Veteran's attorney has argued that the 30 percent rating currently assigned for the Veteran's right knee disability does not adequately compensate the Veteran for arthritis, as the Diagnostic Code used5262does not specifically address arthritis, but rather malunion of the tibia and fibula. The Veteran's attorney does not argue that VA should discontinue this rating under 5262 but rather, continue the 30 percent rating under 5262, and award a separate rating or ratings specifically under Diagnostic Code 5003 for arthritis. For the reasons below, based on the unique facts of this case, the Board finds that a separate award under 5003 would result in impermissible pyramiding. The Board initially wishes to address the change in Diagnostic Code from 5257 to 5003-5262 in the rating decision on appeal, as the parties to a June 2015 Joint Motion for Partial Remand agreed that the Board, in a prior decision, did not adequately address the change. As noted above, the AOJ originally assigned a noncompensable rating under 5257 in 1992, and such was increased twice in subsequent AOJ and Board decisions. In no decision was the rating based specifically on instability or subluxation (symptoms specifically addressed by Diagnostic Code 5257). In the July 2009 rating decision on appeal, the AOJ changed the Code from 5257 to 5003-5262 in an effort to more closely unite the symptoms being rated with the appropriate rating criteria. Indeed, the AOJ awarded an increased rating, on a schedular basis, to 30 percent under Diagnostic Code 5003-5262, effective March 26, 2009, the day his claim for an increased rating was received, specifically noting that it was being awarded based on evidence of "marked limited motion." As the Veteran's rating under Diagnostic Code 5257 was not protected at the time, there was no reduction in benefits, and the change was made in an attempt to more closely address the Veteran's symptoms, there was no legal bar to changing the code. See Butts v. Brown, 5 Vet. App. 532 (1993); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Board also finds that the change away from Diagnostic Code 5257 at that time to another Code that (1) resulted in a more favorable rating and (2) attempted to more accurately address the impairments caused by the disability (i.e., limited motion) resulted in no detriment to the Veteran. The question before the Board is whether the Veteran's current 30 percent rating adequately compensates the Veteran for the disability caused by his service-connected right knee condition. The evidence demonstrates that the Veteran's service-connected disabilitywhich includes arthritismanifests in limitation of motion during painful flares and mild instability causing functional impairment with activity. However, application of the codes specifically addressing limitation of flexion and extension (5260 and 5261, respectively) would not avail the Veteran in this case, as at no point during the appeal period under review, has limitation of flexion or extension been shown to be so severe as to warrant a compensable rating under either code, to include after repetitive use or during flare-ups. Indeed, at the Veteran's most recent examination in July 2021, range of motion during flares and after repetitive use was estimated to 100 degrees of flexion and to five of degrees extension. The examiner provided range of motion measurements in active and passive motion given the presence of pain upon both, and reported no pain in weight-bearing or nonweight-bearing. Prior assessments also do not show limitations that would otherwise support a compensable award under either 5260 or 5261. With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, the VA examination reports reflect consideration of these principles. However, the September 2010, June 2012, April 2015, and December 2020 VA examiners all indicated that the Veteran's range of motion was the same following repetitive use testing, despite evidence of additional pain. Furthermore, as indicated above, although the April 2009 and July 2021 VA examiners indicated that the Veteran's range of motion would be further limited following repetitive use, the additional limitation of motion would not warrant a compensable rating under Diagnostic Code 5260 or 5261. Thus, the evidence does not show that the Veteran's functional loss following repetitive use or during a flare-up would be of such frequency or severity to warrant a compensable rating under Diagnostic Code 5260 or 5261 at any point during the appeal period. The Veteran's attorney does not argue that separate ratings under 5260 or 5261 are warranted based on meeting those codes' respective criteria; rather, he asserts that, under 5003, two 10 percent ratings should be awarded given that range of motion loss has in fact been found to be noncompensable under 5260 and 5261, and he argues the Diagnostic Code 5003 authorizes such an award. As noted above, pursuant to Diagnostic Code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. For the purpose of rating disability due to arthritis the knee is considered a major joint. 38 C.F.R. § 4.45(f). Thus, arthritis, under Diagnostic Code 5003 is rated based on limitation of motion, and if limitation of motion is noncompensable under the specific codes addressing the joint involved, a 10 percent rating is assigned for the joint under Diagnostic Code 5003. In this case, limitation of motion has already been compensated by the 30 percent award already in place. This is made clear by the fact that, in assigning the rating in July 2009, the AOJ specified that such was based on a finding of "marked limited motion." Indeed the AOJ used the hyphenated code 5003-5262 to demonstrate how it reached this rating for arthritis. Notwithstanding the lack of malunion or nonunion of the tibia or fibula, the assignment under 5262 as an extension of 5003 was done specifically to rate what the AOJ interpreted at the time to be "marked limited motion." Thus, the AOJ applied Diagnostic Code 5003 in July 2009, and chose to rate limitation of motion of the right knee caused by arthritis under a code it interpreted be most favorable to the Veteran. While the Board would agree with the Veteran's attorney that Diagnostic Code 5003 generally allows for the assignment of a 10 percent rating for arthritis of the knee with noncompensable limitation of motion, here, in this case, the Veteran's limitation of motion has been deemed compensable by the AOJ. To assign a separate rating under 5003 and leave the 30 percent rating under 5262 intact, would in effect compensate the Veteran twice for the same symptoms. Given that the current assignment under Diagnostic Code 5262 is more favorable than what would otherwise be permissible under 5003, 5260 of 5261, the Board will not disturb the AOJ's decision by changing the Code. That stated, the criteria for rating the knee do not preclude the award of separate ratings for impairment not otherwise contemplated by the current awards. In this connection, concerning instability, the Board finds that a separate 10 percent disability rating is warranted under the former Diagnostic Code 5257 for mild lateral instability of the right knee, effective March 26, 2009, the date the Veteran's claim for an increased rating was received. Indeed, beginning with his claim, the Veteran has reported problems with his knee giving out on him. Also, the Veteran has consistently indicated that he uses a brace and a cane for support. The Veteran competent to attest to observing feelings of instability and giving way, and the Board does not find a reason to call them into question. That stated, whenever instability or subluxation has been assessed by an examiner during the appeal period, such has been described as "normal," or not present, suggesting that any current instability described by the Veteran at worst, mild in degree. As for the new rating criteria, the evidence of record fails to demonstrate a sprain, an incomplete ligament tear, and/or an repaired complete ligament tear causing persistent instability; unrepaired or failed repair of complete ligament tear causing persistent instability; or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. Indeed, the most recent VA examiner indicated that the Veteran did not experience persistent instability, and there is no indication that he has a condition involving the patellofemoral complex. Thus, a rating greater than 10 percent is not warranted under Diagnostic Code 5257 at any point. The Board adds Diagnostic Code 5256 is not for application in this case, as there is no evidence of record demonstrating ankylosis. The Veteran has not undergone removal of semilunar cartilage, nor does his disability manifest in frequent episodes of locking, pain and effusion, such that separate ratings may be warranted under Diagnostic Codes 5258 or 5259. Finally, a higher rating is also not warranted under former or current Diagnostic Code 5262 itself, as nonunion of the tibia or fibula is not present, nor are shin splints. Insofar as the current version of Diagnostic Code 5262 directs to rate knee impairment under 5256, 5257, 5260 or 5261, whichever results in the highest evaluation, such would not avail the Veteran in this case. The Board has evaluated the applicability of the other codes, and finds that during the entire appeal period, the assignment of a 30 percent rating under former Diagnostic Code 5262, with a separate 10 percent award under former Diagnostic Code 5257 contemplates all disabling effects of the Veteran's service-connected right knee injury with arthritis. As such, referral for extraschedular consideration is also not warranted, as the schedule adequately addresses the Veteran's right knee symptomatology. See Thun v. Peake, 22 Vet. App. 111 (2008); see also the June 2015 Joint Motion for Partial Remand. The Board has considered whether the separate award of 10 percent under Diagnostic Code 5257 may be assigned during the one-year period prior to the date of the Veteran's March 2009 claim for increase, but it is not factually ascertainable that an increase in severity warranting the separate award occurred specifically during that one-year period. In summation, the Board finds that a 10 percent disability rating, but no higher, under former Diagnostic Code 5257 is warranted for right knee instability, effective March 26, 2009. However, a rating in excess of, or otherwise in addition to, the currently-assigned 30 percent rating based on limitation of flexion under former Diagnostic Code 5262 is denied. II. TDIU Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran claims entitlement to a TDIU for the period from August 31, 2012. The Board notes that, effective October 10, 2014, the Veteran has been in receipt of a 100 percent disability rating, along with special monthly compensation (SMC) at the housebound rate. As that award is the maximum possible benefit that may currently be granted as it pertains to a TDIU, the claim for a TDIU since October 10, 2014, is moot. See 38 U.S.C. § 7105; Bradley v. Peake, 22 Vet. App. 280 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 249-251 (2010). The Veteran's formal claim for a TDIU was received on October 10, 2014. However, because entitlement to a TDIU was raised in connection with his claim for an increased rating for his service-connected right knee disability that was received on March 26, 2009, the Board finds that his claim for a TDIU stems from the March 26, 2009, claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Given the Board's decision above with respect to assigning a 10 percent disability rating under Diagnostic Code 5257 for instability, effective March 26, 2009, the Veteran has been awarded service connection for the following disabilities: posttraumatic stress disorder (PTSD), rated as 30 percent disabling; right knee disability rated as 30 percent disabling; degenerative disc disease of the lumbar spine at L1-2 (lumbar spine disability), rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; hypertension, rated as 10 percent disabling; right knee instability, rated as 10 percent disabling; residuals of a left fourth toe fracture, rated as noncompensable; left ear hearing loss, rated as a noncompensable; residuals of left thumb tip amputation with split thickness skin, rated as noncompensable, and donor site scar on left forearm, rated as noncompensable. Overall, the Veteran's combined disability rating was 70 percent. See 38 C.F.R. § 4.25. Because the ratings assigned the Veteran's right knee disability and lumbar spine disability affect a single disability system, his orthopedic system, the Board notes that his combined 50 percent rating for those disabilities maybe considered as one disability for the purpose of establishing the schedular criteria under 38 C.F.R. § 4.16. Therefore, the Board finds that the Veteran has met the schedular criteria for a TDIU from March 26, 2009, and the remaining inquiry is whether he was unable to secure or follow substantially gainful employment due solely to his service-connected disabilities at any point since then. To establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A June 2012 VA examination report noted that the Veteran's lumbar spine disability resulted in less movement than normal; weakened movement; incoordination, impaired ability to execute skilled movements smoothly; pain on movement; disturbance of locomotion; and interference with sitting, standing, and/or weight bearing. The examiner also noted that the Veteran's impaired forward flexion made ambulation difficult, and he had problems with normal work tasks due to a reach impairment. As noted above, the June 2012 VA examiner noted that contributing factors limiting his functional ability included less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing. Further, the examiner noted that his right knee disability was noted to interfere with his ability to work such that he experienced pain with running and squatting when lifting. On a February 2013 Social Security Administration (SSA) disability form, the Veteran indicated that his stopped working on August 31, 2012, due to the problems associated with his service-connected PTSD, lumbar spine disability, and right knee disability. He indicated that he last worked as a clerk for the federal government from January 2007 to August 2012, and that he also worked as a Veterans' representative from January 2004 to December 2006. A March 2013 SSA assessment of the Veteran's residual functional capacity noted that the Veteran could only occasionally lift or carry 10 pounds; that he could frequently lift or carry 10 pounds; that he could stand for slightly less than two hours with normal breaks; and that he could sit for a total of two hours with normal breaks. After noting the Veteran's work history as a clerk and a Veterans' representative, the SSA concluded that all jobs were based on the ability to perform at least sedentary work, and the Veteran's residual functional capacity allowed him to perform significantly less than a full range of sedentary work. In his October 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran stated that he stopped working as clerk in August 2012 as a result of the problems associated with his service-connected PTSD, lumbar spine disability, and right knee disability. His previous work history included working as a clerk at a medical center from 2006 to 2012. His educational history included four years of college. An April 2015 VA examination report noted that, in addition to the other functional problems associated with the Veteran's lumbar spine disability, his disability also interfered with his ability to sit. Based on the above, and after resolving all reasonable doubt in his favor, the Board finds that the Veteran's service-connected disabilities rendered him unemployable from August 31, 2012, the day he last worked, such that entitlement to a TDIU is warranted from that day. Significantly, the Board finds that functional impairment associated service-connected disabilities, to specifically include his lumbar spine disability and right knee disability, would greatly limit his ability to carry out substantially gainful employment to include any physical and/or sedentary position. The functional impairment caused by his service-connected disabilities is not only described by the VA examiners, but also by the March 2013 SSA assessment, wherein it was concluded that the Veteran's residual functional capacity allowed him to perform significantly less than a full range of sedentary work. Given these limitations, his education, and his work history, the Board finds that the Veteran would be unlikely to find and maintain employment in any capacity. (Continued on Next Page) In view of the foregoing, the Board finds that entitlement to a TDIU is warranted, effective August 31, 2012 based on the combined effects of his service-connected disabilities. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.