Citation Nr: 21077613 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-49 453 DATE: December 30, 2021 ORDER Entitlement to a rating in excess of 70 percent for major depressive disorder is denied. Prior to February 11, 2020, entitlement to a rating in excess of 20 percent for right knee disability based on meniscal impairment is denied. Prior to February 11, 2020, entitlement to a 10 percent rating, but no higher, for right knee arthritis with limitation of flexion is granted. Prior to February 11, 2020, entitlement to a compensable rating for right knee limitation of extension is denied. From April 1, 2021, entitlement to a rating in excess of 30 percent status post total knee replacement is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's service-connected depression has been manifested by occupational and social impairment with deficiencies in most areas; total occupational and social impairment is not shown. 2. Prior to February 11, 2020, the Veteran's service-connected right knee disability was manifested by symptomatic meniscal impairment and painful but otherwise noncompensable limitation of flexion and extension. 3. From April 1, 2021, the Veteran's service-connected status post right knee replacement has not been manifested by intermediate degrees of residual weakness, pain or limitation of motion or severe painful motion or weakness. 4. The Veteran meets the schedular requirements for an award of TDIU and the evidence reasonably shows that his combination of service-connected disabilities considered in conjunction with his educational background and prior work experience renders him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9434. 2. Prior to February 11, 2020, the criteria for entitlement to a rating in excess of 20 percent for right knee meniscal impairment have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (Codes) 5257, 5258, 5259, 5260, 5261. 3. Prior to February 11, 2020, the criteria for a separate 10 percent rating, but no higher, for right knee arthritis with painful but otherwise noncompensable limitation of motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Codes 5003, 5260. 4. Prior to February 11, 2020, the criteria for a compensable rating for right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Code 5261. 5. From April 1, 2021, the criteria for entitlement to a rating in excess of 30 percent status post total knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5055. 6. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disability have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in March 2020. A transcript of the hearing has been associated with the claims file. In November 2020, the case was remanded for further development. The Board notes that the claim for TDIU has been raised by the record as part and parcel of the claims for increase already on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). Entitlement to a rating in excess of 70 percent for psychiatric disability. In an April 2011 rating decision, the RO granted service connection for major depressive disorder and assigned a 50 percent rating effective October 12, 2010. In a claim received on June 27, 2016, the Veteran sought an increased rating. In the December 2016 rating decision, the RO continued the existing 50 percent rating. Then, in a January 2021 rating decision, the RO increased the rating for depression to 70 percent effective June 27, 2016. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under the General Formula, a 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The evidence of record pertaining to the Veteran's claim for increase includes an October 2016 VA psychological evaluation, a September 2018 VA psychological evaluation, a December 2020 VA contract psychological evaluation, VA treatment records, and the Veteran's statements and testimony. None of the psychological evaluations tend to indicate the presence of total occupational and social impairment. To the contrary, the October 2016 and September 2018 psychologists found that the service-connected psychiatric disorder was manifested by occupational and social impairment with reduced reliability and productivity and the January 2021 psychologist found that the disability was manifested by occupational and social impairment with deficiencies in most areas. Also, all three examinations show some level of social functioning. In this regard, at the October 2016 evaluation, the Veteran affirmatively reported a good relationship with family members and that he was presently living with his mother; at the September 2018 evaluation, he reported that he had been in a relationship with his girlfriend on and off for 5 years and that they currently lived together; and at the December 2020 evaluation, the Veteran reported that he had ok relationships with his family members and was again living with his mother. Similarly, the VA treatment records also show some level of social functioning. For example, at a June 2018 VA group therapy session, the Veteran recounted that he had gone on a golf outing over the weekend with his father. The records also more generally show that during the appeal period, the Veteran was either living with his girlfriend or his mother. Also, September 2018 letters from the Veteran's mother, girlfriend and a family friend indicate social impairment but do not tend to indicate the presence of total social impairment (e.g. they still indicate some level of relationship with his family and girlfriend). Moreover, at the March 2020 Board hearing, the Veteran testified that he used to not have a very good relationship with his daughter but that he currently was chatting with her regularly. He also testified that he continued to maintain relationships with his parents and other family members. Accordingly, the weight of the evidence is clearly against a finding that the Veteran's service-connected psychiatric disability has resulted in total social impairment. Also, the Veteran has not generally exhibited symptoms, which tend to be compatible with assignment of a higher, 100 percent rating. In this regard, he has generally not been shown to exhibit gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Notably, the October 2016 VA contract examiner indicated that the Veteran did have intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) but this appears to have been an isolated finding. Also, the Veteran's fiancée testified that there were times he had become violent toward her. However, overall, the evidence does not indicate that he is a persistent danger to others. Moreover, even assuming for arguments sake that these latter two symptoms are present to some degree, as explained above, the Veteran's psychiatric disability is simply not shown to result in total social impairment. Consequently, the Board does not have a basis for assigning a higher 100 percent rating for the disability as such a rating requires the presence of both total occupational and social impairment and the Veteran's psychiatric impairment is shown to more nearly approximate occupational and social impairment with deficiencies in most areas. Accordingly, the preponderance of the evidence is against the claim and entitlement to a rating in excess of 70 percent for psychiatric disability must be denied. Entitlement to a rating in excess of 20 percent for right knee disability prior to February 11, 2020. Service connection for right knee disability was granted by an April 1996 rating decision. A 20 percent rating was assigned under Diagnostic Code 5258 based on impairment of the meniscus (semilunar cartilage) effective July 2, 1995. In June 2016, the Veteran filed the instant claim for an increased rating. In a subsequent September 2018 rating decision, service connection for right knee limitation of extension was granted. A 0 percent rating was assigned effective September 24, 2018. Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). A September 2014 VA right knee MRI showed findings of advanced tricompartmental joint disease, most prominent in the patellofemoral and medial tibiofemoral compartment, small knee effusion and osteophytosis. Only the anterior horn of the medial meniscus was visualized with the body and posterior horn of the meniscus absent. There was a degenerated and diminutive lateral meniscus with increased signal within the posterior horn. There were post-operative changes of the ACL with two interference screws in the proximal tibia and distal femur. There was also an ACL tunnel cyst. The PCL was intact, and the articular cartilage of the medial and lateral tibiofemoral compartment was almost eroded down to the bone. The patellofemoral articular cartilage appeared fissured over the lateral patellar facet. The medial and lateral collateral ligaments were intact, and a Baker cyst was present. The diagnostic impression was postoperative changes of ACL repair, large cyst in the tibial tunnel, progression of tricompartmental osteoarthritis, macerated medial meniscus, probable degenerative tear of the posterior horn of the lateral meniscus, joint effusion, and Baker's cyst. At an October 2016 VA contract examination, the diagnosis was status post right knee anterior cruciate ligament reconstruction with mild degenerative arthritis. The Veteran reported flare-ups of the right knee described as sharp pain. He also reported functional loss in the form of decreased range of motion. Physical examination showed right knee flexion was to 80 degrees and that right knee extension was to 0 degrees. Pain was found on extension and flexion and noted to cause functional loss. There was moderate tenderness to palpation on the medial and lateral side of the knee, evidence of pain on weight bearing and objective evidence of crepitus. On repetitive use testing, flexion was reduced to 75 degrees and was noted to be due to pain and lack of endurance. The examiner found that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner also found that pain and lack of endurance significantly limited the Veteran's functional ability with repeated use over time. The examiner described this functional loss as decreased flexion to 70 degrees. The examiner additionally found that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. The examiner noted that pain and lack of endurance significantly limited functional ability with flare-ups. The examiner described this functional loss as decreased flexion to 65 degrees. The examiner found that additional factors contributing to disability included less movement than normal, weakened movement and interference with standing. The examiner also found that the Veteran's muscle strength of the right knee area was reduced to 4/5 on flexion and extension due to his service-connected knee disability. The examiner determined that there was no ankylosis. Joint stability testing indicated that there was no history of recurrent subluxation or lateral instability. There was a history of right knee effusion with the knee having been drained 3 to 4 times in the past. Joint stability testing showed normal right knee anterior stability, posterior stability, medial stability, and lateral stability. The examiner noted that the Veteran constantly used a knee brace. The examiner described the overall functional impairment from the right knee disability as knee pain, stiffness, limited range of motion and difficulty with bending, prolonged standing, walking, or climbing stairs. At a March 2018 VA primary care visit, the Veteran reported that his right knee would lock up on him sometimes at night and that the knee would swell after a lot of activity. Physical examination showed that the knee was without swelling or effusion. There was full range of motion and the Veteran's gait was within normal limits. At a June 2018 VA orthopedic consultation, it was noted that the Veteran injured his right knee while in service and underwent a bone tendon bone autograft ACL reconstruction with partial meniscectomy. He then went on to have 2 more arthroscopies for meniscus tears including the most recent one in 2012. He had also received periodic steroid injections into his right knee in both 2014 and 2016 but did not feel these were overly helpful. He was wearing an unloader brace on the right knee, which was helpful. He denied any mechanical symptoms. He did have painless popping in the right knee. Physical examination showed both medial and lateral joint line tenderness. Patellofemoral crepitus was present bilaterally with range of motion. Right knee range of motion was 5 degrees extension to 100 degrees flexion. There was a negative McMurray's sign bilaterally. There was no ligamentous instability. Bilateral extensor mechanisms were intact. At a subsequent September 2018 VA orthopedic visit, the Veteran reported that the series of injections he had received for his right knee over the years had not helped him. Physical examination showed range of motion of approximately 5 to 100 degrees on the right. The joints were noted to be stable; strength was good; the Veteran rose from a seated position readily; and he ambulated without an assistive device. At a September 2018 VA knee examination, the diagnosis was right knee status post anterior cruciate ligament reconstruction with mild degenerative arthritis. The Veteran reported constant pain in the right knee regardless of weight bearing or non-weight bearing status that had been increasing in intensity over time. Pain was located mostly along the medial joint line and along the anterior joint line. He noted limitation in flexion with intermittent locking. There was no buckling. The joint would grind and pop a lot with flexion of the knee. The Veteran reported plans for knee replacement surgery in the preliminary planning stage, and that he was working with VA orthopedics concerning this. The Veteran reported flare-ups of severe pain 4 to 5 times per week with a duration of "minutes." He noted that precipitating factors included climbing stairs, stepping in and out of the trolley bus he drove and walking on uneven services. Alleviating factors included taking Diclofenac and using icy hot/analgesic balm, ice, and elevation. He reported prior injections with cortisone and Hyalgan. The Veteran reported functional limitations, including an increase in right knee pain after walking longer than 5 to 10 minutes and climbing and going downstairs. He indicated that he was unable to run, that sitting longer than 10 to 15 minutes resulted in an increase in pain, and that he was unable to squat or kneel on the right knee. Physical examination showed that range of motion of the right knee was 5 degrees extension to 115 degrees flexion. There was evidence of pain with passive range of motion and when the joint was used in non-weight bearing. The examiner found that the limitation of motion did not itself contribute to functional loss. The examiner noted pain on flexion and extension, including on weight bearing but that it did not result in/cause functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran reported pain with palpation along the medial joint line and pain along the medial joint line with outward/lateral positioning of the lower leg. Repetitive use testing did not show additional functional loss or limitation of motion. The examiner found that additional factors contributing to disability included disturbance of locomotion, interference with sitting, interference with standing, and pain with sitting, standing, and walking. Joint stability testing indicated that there was no history of recurrent subluxation or lateral instability. There was a history of recurrent mild effusion noted in the medical documentation of record. Joint stability testing showed normal anterior instability, posterior instability, medial instability, and lateral instability. The examiner indicated that the Veteran did have a history of a meniscal condition in that he had a prior meniscal tear with partial meniscectomy in 1993. The Veteran was noted to make regular use of a right knee brace. The examiner made note of the September 2014 VA MRI findings. Regarding the functional impact of the right knee disability, the examiner commented that the Veteran would likely not tolerate job/occupational tasks that required prolonged standing or walking without the opportunity for frequent off-load weight bearing position changes. At a November 2018 VA orthopedic surgery visit, the Veteran reported that the right knee impacted his activities of daily living and affected his work capacity. He noted that his walking tolerance had decreased. Physical examination showed a right knee varus deformity that was partially correctable. The right knee had both medial and lateral joint line tenderness. Patellofemoral crepitus was present bilaterally with range of motion. Right knee range of motion was 5 degrees extension to 100 degrees flexion. There was a negative McMurray's sign bilaterally and no ligamentous instability. Bilateral extensor mechanisms were intact. A February 2020 VA physical therapy note shows that the Veteran was seen just prior to him having total right knee replacement surgery. Physical examination showed that right knee range of motion was 100 degrees flexion and 4 degrees extension. At the March 2020 Board hearing, the Veteran testified that prior to knee replacement he found that he was tripping when he went up the stairs and that he had continuous knee pain. He indicated that he could not bend down properly; if he had to bend down for something, he needed to lie on his side because the flexion in his knee was only approximately 91 or 95 percent in degree and bending was painful. He also indicated that he experienced clicking and popping. Additionally, he noted that he would get up and have to move at night because during sleep his knee would become locked either in an open or closed position. Moreover, he reported that the right knee prevented him from walking long distances or using a ladder for more than five minutes. Knee disabilities can potentially be rated under several different rating codes, according to 38 C.F.R. § 4.71a. Pursuant to Code 5003, arthritis (i.e. degenerative joint disease) established by x-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Codes 5260 provides for rating based on limitation of flexion of the knees. Flexion limited to 45 degrees is rated at 10 percent; flexion limited to 30 degrees is rated at 20 percent; and flexion limited to 15 degrees is rated at 30 percent. 38 C.F.R. § 4.71a, Code 5260. Code 5261 provides for rating based on limitation of extension of the knees. Extension limited to 10 degrees is rated at 10 percent; extension limited to 15 degrees is rated at 20 percent; extension limited to 20 degrees is rated at 30 percent; extension limited to 30 degrees is rated at 40 percent; and extension limited to 45 degrees is rated at 50 percent. 38 C.F.R. § 4.71a, Code 5261. For rating purposes, normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. The rating schedule also provides for a 10 percent rating for slight recurrent subluxation or instability, a 20 percent rating for moderate recurrent subluxation or instability, and a 30 percent rating for severe recurrent subluxation or instability. 38 C.F.R. § 4.71a, Code 5257. The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August,1998). Moreover, the General Counsel has also held that separate ratings under 38 C.F.R. § 4.71a, Code 5260 (limitation of flexion of the leg) and under Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 2004). Other diagnostic codes, which could potentially apply to the knee disability include Codes 5258 and 5259. Under Code 5258, a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Under Code 5259, symptomatic removal of the semilunar cartilage is rated as 10 percent disabling. Under Lyles v. Shulkin, 29 Vet. App. 107 (2017), as a matter of law, separate ratings are not precluded for limitation of motion (Codes 5003, 5260 and 5261), meniscal disability (Codes 5258 and 5259) and instability (Code 5257). At the outset, the Board notes that when service connection was initially granted, the 20 percent rating for the Veteran's right knee disability was assigned under Code 5258. Resolving reasonable doubt in the Veteran's favor, the Board finds it appropriate to continue the 20 percent rating under this Code for the appeal period prior to February 11, 2020, as he was shown to continue to have meniscal pathology with consistent pain and some degree of locking and effusion. See e.g. September 2014 VA MRI, finding that the Veteran had a macerated medial meniscus with later medical evidence not showing that this condition was ameliorated and September 2018 VA examination, showing objective evidence of pain, noting that the medical documentation showed a history of recurrent mild effusion; and indicating that the Veteran reported intermittent locking. As this is the highest rating available, a rating in excess of 20 percent under Code 5258 is not warranted. The Board also notes that given this 20 percent rating, a separate 10 percent rating for removal of semilunar cartilage (meniscus), symptomatic, cannot be assigned as this would amount to pyramiding (i.e. the higher 20 percent rating is warranted for a higher level of symptomatic meniscal impairment, which involves the noted locking, pain and effusion). Considering whether a separate rating is warranted under Code 5260, the above summarized evidence does not show that right knee flexion has been limited to 60 degrees or less at any time during the appeal period prior to February 11, 2020. Rather, the medical evidence shows that flexion was measured to be to at least to 65 degrees even after considering repetitive use and flare-ups. Accordingly, a separate rating under Code 5260 is not warranted. Considering Code 5261, the Board notes that a noncompensable rating has already been assigned under this Code. However, as extension has not been shown to be limited to 10 degrees or more at any time during the appeal period prior to February 11, 2020, there is no basis for assigning a higher compensable rating for limitation of extension at any time during the appeal period. 38 C.F.R. § 4.71a, Code 5261. The Board notes, however, that the Veteran has been shown to have pain accompanying his otherwise noncompensable limitation of flexion. Thus, the Board is able to assign a single, separate 10 percent rating for right knee disability characterized as painful limitation of flexion that is otherwise noncompensable. Because the Veteran has already been assigned this 10 percent rating based on painful or otherwise noncompensable flexion of the knee, to the extent that he has exhibited painful but otherwise noncompensable limitation of extension of the knee, the Board is not able to assign an additional 10 percent rating for this impairment as only one such 10 percent rating is permitted for the knee, a major joint. See 38 C.F.R. § 4.71a, Code 5003. The evidence does not show any instability or recurrent subluxation of the right knee during the appeal period. In this regard, at the October 2016 VA contract examination, joint stability testing showed normal right knee anterior stability, posterior stability, medial stability, and lateral stability and indicated that there was no history of recurrent subluxation or lateral instability. Similarly, the September 2018 VA examination was negative for any instability or recurrent subluxation and the other evidence of record during the appeal period does not show these manifestations. Moreover, the Veteran has not specifically alleged that either of these impairments were present during the appeal period prior to February 11, 2020. Accordingly, a separate rating is not warranted under Code 5257. The Board has also considered whether any other codes applicable to rating disability of the knee could be applied. However, ankylosis, impairment of the tibia or fibula and genu recurvatum are neither shown nor alleged. Consequently, there is no basis for applying any of these Codes. See 38 C.F.R. § 4.71a, Codes 5256, 5262, 5263. In sum, prior to February 11, 2020, the existing 20 percent (but no higher) rating is warranted based on the Veteran's meniscal impairment and an additional 10 percent rating, but no higher, is warranted based on painful limitation of flexion that is otherwise noncompensable. The noncompensable rating for limitation of extension remains undisturbed. Entitlement to a rating in excess of 30 percent status post total knee replacement from April 1, 2021. The evidence shows that the Veteran underwent total right knee replacement surgery on February 11, 2020. Consequently, he was granted a total, 100 percent rating status post-surgery with convalescence effective February 11, 2020. A 30 percent rating was then assigned after convalescence effective April 1, 2021. The Veteran's status post total knee replacement has been rated as 30 percent disabling under Code 5055. Under this Code, prosthetic replacement of a knee joint is rated 100 percent disabling for one year following implantation of the prosthesis (The one-year total rating commences after a one-month total convalescent rating under 38 C.F.R. § 4.30). Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. The Board notes that the noted intermediate degrees of disability are consistent with a 40 or 50 percent rating. See Tedesco v. Wilkie, 31 Vet. App. 360, 364 (2019). Also, under Code 5055, severe painful motion and limitation of motion are distinct concepts and in order to warrant a 60 percent rating, severe painful motion (or weakness) must be shown. Tedesco, 31 Vet. App. at 365. Limitation of motion is but one factor when assessing the disability commensurate with "severe painful motion" and range of motion test results, and the corresponding evaluation under the pertinent limitation-of-motion Diagnostic Code, cannot be the only evidence cited. Tedesco, 31 Vet. App. at 366. At an October 2020 VA examination, the diagnosis was total knee replacement with residual pain. The Veteran reported that about 2 to 3 times per week he would get a flare-up involving moderate pain lasting a few hours if his activity level increased. He noted that he used rest, ice, compression, and elevation to help alleviate this pain. He also reported that he had pain if he stood too long, sat too long, walked distances, or walked up or down stairs. He indicated that he would trip on things and fall because he could not raise his leg up much. Physical examination showed that range of motion was 90 degrees flexion to 10 degrees extension. The examiner noted that the abnormal range of motion contributed to functional loss in that the Veteran had difficulty squatting and walking up stairs. The examiner also noted that there was pain on flexion and objective evidence of localized tenderness or pain on palpation of a mild degree that was lateral, superior, and distal to the knee joint. Additionally, there was objective evidence of pain on weight bearing and no objective evidence of crepitus. On repetitive use testing, there was no additional loss of motion. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and that pain caused functional loss upon repetitive use over time. The examiner estimated that the Veteran's additional limitation after repetitive activity was mild in degree. The Veteran reported that his range of motion was about three fourths of normal due to pain after repetitive activity. The examiner also found that the examination was medically consistent with the Veteran's statements describing functional loss during flare-up and that pain resulted in functional loss during flare-up. The examiner estimated that this additional loss of function was moderate in degree. The Veteran reported that on flare-up, his range of motion was about half of what it normally was due to pain. The examiner found that contributing factors to the Veteran's right knee disability were swelling, disturbance of locomotion, interference with sitting, interference with standing and interference with lifting. The examiner noted that the Veteran would have pain upon standing more than 10 to 15 minutes, sitting more than 20 minutes, and walking more than 10 minutes. The examiner found that the Veteran would be unable to lift any weight from the ground and noted that the Veteran's knee would swell with increased activity. The above summarized evidence does not show that the Veteran's right knee disability has been manifested by severe painful motion or weakness. In this regard, while there was pain on motion noted at the October 2020 examination, it was not found to be severe and the Veteran did not report that it was severe. He was also not shown to have severe weakness and did not report severe weakness. Additionally, on testing, the Veteran's motion was limited but not to a severe degree (i.e. 10 degrees extension to 90 degrees extension). Considering the overall level of impairment shown during the November 2020 examination, the weight of the evidence is against a finding that there have been chronic right knee residuals consisting of severe painful motion or weakness. In other words, the Board finds that a 60 percent rating for the right knee is not warranted. Code 5055 also calls for consideration of whether an intermediate rating (i.e. higher than 30 percent but lower than 60 percent) is warranted by rating by analogy to Codes 5256, 5261, or 5262. The Board notes that the Veteran does not meet any criteria for rating under Code 5256 or Code 5262, as there is no evidence of ankylosis or impairment of the tibia and fibula, respectively. Further, at the October 2020 VA contract examination, the Veteran's extension was to 10 degrees, which is not compatible with a rating in excess of 30 percent but rather with a 10 percent rating under Code 5261. Thus, the evidence does not form a basis for awarding a rating in excess of 30 percent for an intermediate level of impairment status post knee replacement under Code 5055. The Veteran's functional impairment due to pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, as well as DeLuca, have been considered in assigning the existing 30 percent rating. The Board finds that, on these facts, no higher rating is assignable on such basis. The Veteran was able to accomplish the levels of range of motion noted above in the examination findings even with pain after repetitive use testing. Even after repetitive use testing, the loss of motion and the severity of other loss of function as discussed above is not compatible with a disability rating greater than 30 percent. The Board acknowledges the Veteran's self-report of additional loss of motion after repetitive use and on flare-ups. However, as explained above, functional impact due to pain is already contemplated by the existing 30 percent rating. Moreover, in assessing the functional impact after repetitive use and on flare-ups, the October 2020 VA contract examiner assessed the impact after repetitive use as mild and the impact on flare-ups as moderate. Moreover, the Veteran affirmatively reported that flare-ups only occurred about 2 to 3 times per week lasting for a few hours. Thus, although he self-reported significant loss of motion during these times, given their infrequency, they do not provide a basis for assigning a higher rating based on functional loss during flare-ups. The Board notes that in an April 2021 brief, the Veteran's representative argued that the October 2020 examination occurred during the Veteran's convalescent period and that as a result, the claim should be remanded so that he can receive a current examination occurring after this period has ended. However, neither she nor the Veteran has alleged that the right knee disability has worsened since the October 2020 VA contract examination nor is there other evidence of record suggesting any such worsening. Under this circumstance, the Board finds that an adequate assessment of the severity of the Veteran's right knee disability was accomplished by the October 2020 examination and a remand for a new examination is unnecessary and would not benefit the Veteran. In sum, applying the pertinent criteria to the evidence of record, a rating in excess of 30 percent for status post right knee replacement from April 1, 2021 is not warranted. Entitlement to a TDIU. The Veteran alleges that his service-connected disabilities render him unemployable. A total disability rating for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). TDIU will be granted when the evidence shows that the veteran, due to his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's service-connected disabilities include psychiatric disability, rated 70 percent disabling, right knee meniscal impairment, rated 20 percent disabling prior to February 11, 2020, right knee arthritis with painful flexion, rated 10 percent disabling prior to February 11, 2020, right knee limitation of extension rated noncompensable prior to February 11, 2020, right knee status post knee replacement rated 30 percent disabling from April 1, 2021, left knee arthritis/limitation of extension, rated 20 percent disabling, left knee arthritis/limitation of flexion, rated 10 percent disabling, and right knee surgical scar, rated noncompensable. As noted above, from February 11, 2020, through March 31, 2021, the Veteran already has total, 100 percent disability rating assigned based on convalescence and recovery from total knee replacement surgery). Accordingly, he meets the schedular criteria for assignment of a TDIU for the entire appeal period in question. The evidence shows that the Veteran graduated high school and attended some community college before entering service from 1987 to 1995 and being discharged due to his knee disability. See June 2003 VA vocational rehabilitation counseling record. After service, it appears that he worked from 1997 to 2003 in mostly physical jobs but ultimately could not continue physical work due to his knee disability. Id. He then received VA vocational rehabilitation services off and on, including pursuing some additional college coursework until April 2018, when his vocational rehabilitation program was discontinued. VA treatment records then show that he got a job driving a trolley part time, 24 hours a week sometime around September 2018. However, the records show he lost this job, along with his commercial driver's license, sometime between June and August 2019. The basis for his firing was that a drug test came up positive for marijuana due to him taking gummies that contained THC. See e.g. August 2019 VA psychiatry note. The evidence also includes a report by the Veteran that while working as a trolley driver, he was counseled for yelling at other drivers. See e.g. September 2018 VA psychological evaluation. As of January 2021, the evidence does not indicate that the Veteran has gotten another job or gotten his commercial driver's license back. Concerning the effect of his service-connected disabilities on his employability, as noted above, the Veteran has been assigned a 70 percent disability rating for his psychiatric disability, which reflects a severe level of impairment. Among other symptoms, his psychiatric disability has been found to result in difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including work or work-like setting. See e.g. October 2016 VA contract examination, September 2018 VA examination and December 2020 VA contract examination. Also, given that he has had significant right knee disability, is now status post total right knee replacement, and also has significant left knee disability, he is shown to be unable to perform work with a significant physical component, which encompasses most of his past work experience. (Continued on the next page) The Veteran did work part-time, approximately 24 hours per week, as the trolley driver from sometime around September 2018 to sometime between June and August 2019. However, the evidence shows that he lost this job along with his commercial driver's license after testing positive for marijuana use. Notably, it appears that the Veteran has been found in the past to self-medicate his psychiatric disability with alcohol and/or drugs. See e.g. March 2011 VA examination, noting this historical pattern of self-medication. Also, the evidence includes the Veteran's report that he had trouble functioning in the trolley driver job in that he was counseled for yelling at other trolley drivers. Additionally, given that the Veteran was only working approximately 24 hours per week, it is not clear that the trolley driver job amounted to substantial gainful employment rather than marginal employment. In sum, given the combination of the Veteran's highly significant mental and physical impairment from his service-connected disabilities; his past work experience being primarily limited to physical work; his limited educational level; and the part-time and short lived nature of his trolley driver position with accompanying difficulties with the position, and resolving reasonable doubt in his favor, the evidence establishes that his service-connected disabilities have rendered him unable to obtain and retain substantially gainful employment over the course of the appeal period. Accordingly, assignment of a TDIU rating is warranted. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.