Citation Nr: 21005407 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-34 932A DATE: February 1, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for the periods prior to January 15, 2015; from April 1, 2015 to December 28, 2015; from July 1, 2016 to January 4, 2017; and from February 1, 2020, and to a disability rating in excess of 30 percent for the period from January 5, 2017 to January 31, 2020, for the service-connected right knee condition rated as patellofemoral syndrome and arthritis, status post partial knee replacement and partial meniscectomy (right knee condition) is denied. Entitlement to a 50 percent disability rating, but no higher, is granted for the period prior to February 21, 2020 for major depressive disorder; a disability rating in excess of 50 percent for major depressive disorder is denied throughout the entire appeal period. Entitlement to an effective date earlier than January 5, 2017, for the award of 30 percent for right knee arthritis status post partial knee replacement and partial meniscectomy is denied. REMANDED Entitlement to a compensable disability rating for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right knee condition is manifested by a limitation of flexion still permitting greater than 120 degrees of flexion during the periods on appeal where the Veteran’s right knee condition is rated less than totally disabling; a total knee replacement has not been performed. 2. The severity, frequency, and duration of the Veteran’s psychiatric symptoms more closely approximate occupational and social impairment with reduced reliability and productivity for the period prior to February 21, 2020, and did not more closely approximate occupational and social impairment with deficiencies in most areas at any point during the appeal period. 3. The evidence of record does not support a finding that the Veteran underwent a total knee replacement during the appeal period warranting an effective date earlier than January 5, 2017, for the 30 percent disability rating awarded for residuals of that surgical treatment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for right knee arthritis status post partial knee replacement and partial meniscectomy from January 5, 2017 to January 31, 2020, and for a rating in excess of 10 percent for all other periods in which the right knee condition is not rated 100 percent disabled have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5024, 5055, 5260. 2. The criteria for a 50 percent disability rating, but no higher, are met for major depressive disorder prior to February 21, 2020; the criteria for a disability rating greater than 50 percent for major depressive disorder have not been met at any point during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 3. The criteria for an effective date earlier than January 5, 2017, for the award of a 30 percent disability rating for residuals of a right knee total knee replacement have not been met. 38 U.S.C. §§ 5110, 5112; 38 C.F.R. §§ 3.105, 3.400(o). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1998 to February 2002. These matters have previously been before the Board of Veterans’ Appeals (Board) in July 2018, August 2019, and February 2020. In November 2020, the Veteran’s attorney requested an additional 90 days in which to submit additional evidence in this appeal. Subsequently, in the following month, the attorney submitted additional evidence. In the cover letter accompanying this evidence, the attorney specifically stated that this submission “is our final submission in support of the appeal and we waive any remaining time to send additional evidence or arguments. Please forward the case to the Board for a decision.” Accordingly, the Board will proceed with its review and adjudication of the Veteran’s appeal. Increased Ratings Right knee condition The Veteran contends that he is entitled to a higher rating because of the pain, swelling, and other symptoms associated with his knee condition that he asserts render him more disabled and pushed him out of the workforce. Two portions of the appeal period are not on appeal because the Veteran has been assigned temporary total evaluations, the highest evaluation available, for surgeries conducted on his knee during those periods. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.30. Those periods are January 15, 2015 to March 31, 2015, and December 29, 2015 to June 30, 2016. Prior to the May 2019 rating decision, the Veteran’s right knee condition was rated under Diagnostic Code 5024. However, this diagnostic code simply instructed that his right knee disability under an appropriate rating for limitation of motion of the effected joint. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5024, n. After the May 2019 decision, the Veteran’s right knee condition has been rated under the schedule for limitation of flexion. Consequently, the Board’s analysis begins there. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s right knee conditions for the period prior to January 15, 2015, and the periods from April 1, 2015 to December 28, 2015; July 1, 2016 to January 4, 2017; and from February 1, 2020, or 30 percent for the period from January 5, 2017 to January 31, 2020. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, swelling, weakness, and the sensation that the leg was giving way. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The Board has considered the evidence in the year preceding when the Veteran’s claim for an increased rating for his right knee condition was received and found no evidence of a date during that year by which date the Veteran’s right knee condition can be shown to have increased in severity. The evidence regarding the severity of the Veteran’s right knee condition during the period preceding his first surgery on January 15, 2015 is typified the VA examinations conducted during this period. At the VA examination conducted in February 2012, the Veteran demonstrated full flexion and 120 degrees of flexion without change after observed repetitive use. Similarly, the May 2012 VA examination documented full extension and flexion to 85 degrees of the right knee that did not change after repetitive use. During the period between the end of his convalescent rating from his first surgery and his second surgery (April 1, 2015 to December 28, 2015), the Veteran’s right knee condition was typified by VA treatment records where the Veteran complained of pain, swelling, and the inability to climb stairs or walk long distances, but without complaints about limitation of motion of the knee. The Veteran was in receipt of a convalescent rating December 29, 2015 until June 30, 2016. Therefore, the next period under consideration is the period from July 1, 2016 to January 4, 2017. His condition during this period is typified by VA treatment records during the period where the Veteran complained of pain, “giving way,” and swelling. A September 2016 VA treatment record documented a range of motion from 0-120 degrees of range of motion. The Veteran’s disability rating was increased to 30 percent beginning January 5, 2017 through January 31, 2020 and returned to a 10 percent rating beginning February 1, 2020. This increase was not made because of a documented increase in the severity of the Veteran’s right knee condition. Instead, it was done under Diagnostic Code 5055 which provides a minimum 30 percent disability rating after a total knee replacement. The record reflects that the decrease was accomplished because the Veteran underwent a partial and not total right knee replacement and was thus not entitled to that regulatory minimum rating. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 4.71a, Diagnostic Code 5055, note. However, during the period following January 5, 2017, the Veteran’s examinations continue to reflect a right knee range of motion permitting greater motion than contemplated by a 20 percent disability rating. A February 2017 compensation and pension examination demonstrated a range of motion from 0 to 110 degrees that was not decreased after observed repetitive use. Similarly, in an October 2018 VA examination revealed a range of motion from 0-130 degrees in the right knee that did not change upon observed repetitive use and that the examiner did not expect to change after repeated use over time. The evidence simply reflects a range of motion throughout the appeal period that precludes a finding of a rating in excess of 10 percent based on limitation of flexion. A 20 percent disability rating is not warranted until a veteran’s flexion permitting at least 16 degrees of flexion but less than 30 degrees. 38 U.S.C. § 4.71a, Diagnostic Code 5260. The Board has considered other rating codes. First, Diagnostic Code 5261 governs the limitation of extension. However, a 10 percent disability rating under this code is not warranted until a veteran’s extension is limited to 10 degrees and continues to be warranted until a veteran’s extension is limited to no less than 15 degrees. The same ranges of motion discussed above demonstrates that the Veteran’s right knee extension was consistently normal during the appeal period. Diagnostic Code 5256 deals with ankylosis. Separate ratings under this code are pyramiding, because ankylosis is a limitation of motion to the extent that a joint becomes fixed and unable to move. However, the Veteran’s medical records, including the VA examination results discussed above do not demonstrate ankylosis. Diagnostic Code 5257 deals with recurrent subluxation or lateral instability. Under this code, a 10 percent disability rating is not warranted unless the evidence demonstrates “slight” instability. The VA examinations discussed above, and the other medical evidence of record consistently indicated no subluxation. The Board notes that at various times, the Veteran reported feeling that his knee was unstable or that his knee was giving way. However, the VA examinations all demonstrated that instability could not be documented, demonstrated, or reproduced during the examinations. It is unclear from the Veteran’s reports if what the Veteran was discussing was instability as this term is used in clinical practice and the rating code or if he is instead describing the sensation of his knee being weak or unable to bear weight due to pain. If it was the former, a separate rating might be warranted under Diagnostic Code 5257. If the latter, a separate rating would not be warranted. Thus, given the lack of clarity in the Veteran’s reported symptoms, and the fact that instability could not be reproduced or demonstrated on clinical testing, the Board finds that a separate rating under Diagnostic Code 5257 is not warranted for instability. Diagnostic Codes 5258 and 5259 deal with conditions of the semilunar cartilage, the meniscus. The record reflects that the Veteran underwent a partial meniscectomy on his right knee during his first operation in January 2015 along with his arthroscopy at that time. Radiographs from July 2014 document an effusion of the joint. However, all of the VA examinations discussed indicate that the Veteran’s meniscal condition, both pre- and post- operatively, were not symptomatic, and the other medical evidence of record does not indicate otherwise. Consequently, the Board finds that a separate rating under these meniscal codes is not warranted. Diagnostic Codes 5262 and 5263 deal with impairment of the tibia and fibula and genu recurvatum, conditions that are not shown in the Veteran’s medical records. Finally, this brings the Board to a brief discussion of the period from January 5, 2017 to January 31, 2020, where the Veteran’s right knee condition was rated 30 percent disabling under Diagnostic Code 5055. Diagnostic Code 5055 governs prosthetic replacement of the knee joint. 30 percent is the minimum rating assigned under this code. However, the Board finds that the Veteran was never entitled to the 30 percent disability rating assigned in the first place, and consequently is not entitled to a higher disability rating under this code. The rating schedule makes clear that the ratings under the codes that govern prosthetic replacement, such as Diagnostic Code 5055, apply to the total replacement of the named joint. 38 C.F.R. § 4.71a, Note to DC 5051-5056. In December 2015, the Veteran had a partial knee replacement and not a total knee replacement. A misunderstanding resulted in the Veteran being rated as if he had had a total knee replacement during this period. A decision proposing to reduce the Veteran’s compensation and compensate him under an appropriate code was provided in May 2019. The Veteran filed a notice of disagreement with this proposed reduction, but no appeal resulted because the decision was not final. A final decision formalizing the reduction was provided in November 2019, and the Veteran did not file a notice of disagreement with that decision. There is no evidence that the Veteran underwent a total knee replacement, and the Veteran has not disputed the regional office’s decision that he has not had such a procedure. Consistent with this evidence, the Board finds that the Veteran was not entitled to any rating under Diagnostic Code 5055 and is therefore not entitled to a higher disability rating under this code. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent during the period from January 5, 2017 to January 31, 2020, or a rating in excess of 10 percent during the other periods excepting those during which the Veteran’s right knee condition has been rated temporarily totally disabling for a right knee condition. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Major depressive disorder The Veteran contends that his psychiatric symptoms are more severe than reflected by the 30 percent and 50 percent disability ratings that he is in receipt of during the appeal period. 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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher prior to February 21, 2020, and whether the Veteran’s symptoms caused a level of impairment required for a disability rating of 70 percent or higher from that date. The Board concludes that, prior to February 21, 2020, the Veteran’s symptoms did cause the level of impairment required for a disability rating of 50 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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. Medical records early in this period do not indicate significant psychiatric impairment at all. An August 2015 VA examination indicates that the Veteran was not diagnosable with a psychiatric condition, and at the VA examination reported only intermittent depression related to his physical condition. However, the Veteran’s friends and family in statements beginning in November 2017 described the Veteran has having stopped attending functions, disliking being in a large crowd, having a short fuse, having lost his motivation and interest, and having difficulty with his memory. A December 2017 examination submitted by the Veteran diagnosed a depressive disorder with anxious distress features and indicated an array of symptoms including depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, impairment of shot and long term memory, for example retention of only highly learned material, while forgetting to complete tasks, flattened affect, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, persistent delusions or hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In a narrative summary of the clinical interview, the examiner indicated that the Veteran described these symptoms and more, including self-isolation, a racing mind, and sleep interrupted by bad dreams. The examiner reported that the Veteran had persistent paranoid delusions about people watching him, seeing shadows, silhouettes, and objects that are not there, and rituals of checking and rechecking doors and windows and walking the perimeter of the property inside and outside his house. However, this litany and severity of symptoms appears at odds with VA treatment records where the Veteran continued to deny psychiatric or mental health symptoms requiring immediate treatment during the period immediately following this examination. The Veteran’s frequent interactions with VA staff include no indication of the delusional, hallucinatory, hygiene, or mood problems discussed. He was routinely described as appropriately dressed, with adequate hygiene, and much more normal behavior than the 2017 private examination would imply. An October 2018 VA examination confirmed the Veteran’s depression diagnosis, and appeared to confirm many of the symptoms observed by the Veteran’s friends and family, such as depressed mood, diminished interest or pleasure in activities, changed sleep patterns, loss of energy and fatigue, feeling of worthlessness, and decreased concentration. The Veteran described his romantic relationship as stressed by his lack of income. He described himself as depressed, stressed much of the time, and frustrated by his inability to provide for his daughter. In contrast to the December 2017 examiner’s report, the Veteran denied hallucinations or delusions, and stated that the only time he experienced hallucinations previously had been when he was on medication that he was no longer taking. The examiner documented the Veteran’s depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The examiner noted that the Veteran was neatly groomed and appropriately dressed, displayed logical, organized, and goal directed thought process. His speech was normal, and his immediate recall, delayed recall, and remote memory were intact. A November 2018 treatment note documents bad nightmares nearly nightly, a variable appetite, being “kind of depressed sometimes,” and being in “a dark place” emotionally about a month prior. And his mental health treatment notes during 2019 include information about improved relationships with his daughter, possible business ventures, and positive vacation experiences on a cruise ship with his longstanding partner. At a February 2020 VA examination, the Veteran reported depression, mood disturbances, loneliness, and family stress. The examiner documented depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The Veteran was well dressed and well-groomed. He had logical and linear speech and denied suicidal ideation or hallucinations. The February 2020 VA examiner specifically reviewed the 2017 non-VA examination and noted that the Veteran comparing the 2017 private examination appeared to be an outlier compared to the other examinations discussed. The examiner noted that the Veteran had denied the very severe symptoms described in the private examination and did not present with them during this examination or the Veteran’s other psychiatric treatment records. The Board finds that, prior to February 21, 2020, the severity, frequency, and duration of the Veteran’s listed and unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. The Veteran’s symptoms were commonly present, but appear to have consisted mostly of depressed mood, a lack of motivation, frustration, and isolation. The Board finds that these are similar to symptoms present in the criteria for a 50 percent or lower rating such as depressed mood (30 percent criteria), disturbances of motivation and mood (50 percent criteria), and a difficulty establishing and maintaining effective work and social relationships (50 percent criteria). To the extent that the evidence of record during this period includes evidence of symptoms more severe than those contemplated by the 50 percent criteria, the evidence for those symptoms come from the 2017 private examination which appears to be significantly out of step with the other evidence. Even the statements from the Veteran’s friends which include information of significant depression, moodiness, and irritability, do not contain evidence of the illogical speech, gross impairments of communication, delusions, hallucinations, and other very significant symptoms. The Board finds that the symptoms described in the 2017 private opinion are simply not an accurate reflection of the Veteran’s general psychiatric condition – either because they have been exaggerated or because they accurately record the Veteran’s symptoms that were acute and are greatly outside the Veteran’s general condition. Consequently, the Board finds that awarding a rating in excess of 50 percent for this condition during this period based on the symptoms reported on the 2017 private examination is not warranted. The Board has awarded an increase from 30 percent to 50 percent during the period preceding February 21, 2020, for the Veteran’s psychiatric condition. However, the Veteran is already in receipt of a 50 percent disability rating based on the results of the February 2020 examination discussed. Other than the February 2020 examination, the evidence regarding the Veteran’s condition comes primarily from a statement that the Veteran submitted in December 2020 where he describes himself as depressed, a loner, emotionally distant, not a good communicator, self-isolative, lacking motivation, and easily frustrated. The Board finds that these symptoms are most closely associated with a 50 percent disability rating, at best. A 50 percent criteria contemplates occupational and social impairment with reduced reliability and productivity, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and depressed mood. The Board notes that these symptoms correlate well with the Veteran’s self-described depression, isolation, lack of motivation, and difficulties with relationships. The Board also notes that the Veteran during his recent treatment notes appears to have also related many positive experiences such as the improved relationship with his daughter throughout 2019, several references to engaging in some kind of business – including the hiring of a web manager, and an “awesome” vacation with his significant other on a cruise ship; all of this despite the Veteran’s professed deep isolation and refusal to leave the house when requesting benefits. The Board finds that, at the very least, these positive reports indicate that his depression and related symptoms come and go permitting him to continue to engage in occupational and social life from a mental health perspective, albeit with reduced reliability and productivity, as contemplated by the 50 percent rating and criteria therefore. The Board notes, despite the many positive developments with the Veteran’s psychiatric condition documented in his VA treatment notes during the year 2019, the Veteran also reported “random thoughts” of suicide during July or August of that year. Reports of those symptoms appear in treatment notes from that time, and suicidal ideation, which is contemplated by the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 70 percent or 100 percent disability ratings. The Veteran reported experiencing suicidal ideation apparently for only a brief period of time and not consistently, describing them as “random thoughts.” Otherwise, the Veteran has consistently denied suicidal ideation during VA treatment visits, in VA examinations, and even in the 2017 private examination documenting much more severe symptoms. In a recent statement to VA submitted in December 2020, the Veteran stated that he was depressed but not suicidal. Consequently, the Board finds that these relatively isolated and “random” suicidal thoughts are not a sufficient and ongoing feature of the Veteran’s condition warranting a rating in excess of 50 percent for the psychiatric condition. In short, although the Board finds that the evidence warrants a 50 percent rating prior to February 21, 2020, the Board also finds that the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms have not resulted in the level of impairment required for the next higher rating of 70 percent at any time during the appeal period. As the criteria for the next higher evalution of 70 percent are not met at any time during the appeal period, this aspect of this increased rating claim must be denied. Effective date earlier than January 5, 2017, for the award of 30 percent for right knee arthritis status post partial knee replacement The Veteran has asserted entitlement to an effective date earlier than January 5, 2017, for the award of a 30 percent rating for his right knee arthritis. In general, the date of an evaluation and award is the date of the receipt of claim or the date entitlement arose, whichever is later. This general rule applies to increases. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(1). The Veteran’s entitlement to a disability rating of 30 percent was provided in an April 2017 rating decision applying 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5055, a code that applies to knee replacements. The Veteran filed a notice of disagreement, asserting entitlement to an earlier effective date for the award than January 5, 2017, and this issue was developed separately from his general claim for an increased rating for his right knee which was addressed previously herein. The facts of this matter are that the Veteran underwent a partial knee arthroplasty (partial knee replacement) in December 2015. This was misunderstood as a total knee replacement resulting in the April 2017 rating decision awarding the Veteran the minimum 30 percent rating that follows a total knee replacement by regulation. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5055. The note that accompanies the diagnostic codes regarding prosthetic replacement, including Diagnostic Code 5055, states that these codes apply only to total replacement of the named joints. The Veteran has never had a total knee replacement. Thus, legal entitlement to the minimum rating that follows a total knee replacement was never established—not on January 5, 2017, and certainly not before the partial knee replacement surgery was performed. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. Simply put, the Veteran is not entitled to an earlier effective date for an award to which he was never legally entitled. Notably, the Veteran has not articulated a theory or provided any evidence that an earlier effective date is warranted for this award. Entitlement to an earlier effective date for this award is denied as not supported by the facts of the case or regulation. REASONS FOR REMAND Entitlement to a compensable rating for OSA The Board cannot make a determination on the issue of entitlement to a compensable disability rating for OSA because an adequate opinion is not of record. Service connection for this condition was awarded on the basis of a November 2018 opinion that was unable to establish a baseline for the Veteran’s OSA prior to its aggravation by the Veteran’s service-connected rhinitis. Regrettably, the phrasing of the February 2020 Board decision appears to have led the regional office to request opinions discussing entitlement to service connection for this condition that, in the context of this appeal, provide contradictory information regarding the Veteran’s OSA condition. In the February 2020 opinion, the clinician appears to indicate in the first part of the opinion that the Veteran’s condition has not been worsened, tantamount to asserting that the condition was at and remains at its baseline, before then stating that OSA was being worsened (or at least risked being worsened) by the Veteran’s obesity. Similarly, the September 2020 opinion simultaneously states that it is not possible to determine baseline level of severity for this condition, and that the medical records do not show that the Veteran’s OSA has been permanently worsened, leaving unexplained what the distinction is between the “not worsened” general level of severity of the Veteran’s OSA and a baseline. A new opinion is required. Entitlement to a TDIU In a September 2016 VA treatment note, there is information that the Veteran might have been working in some manner. The treating provider documented that Veteran’s job as “food worker.” Similarly, the Veteran made several references throughout treatment records in 2019 to some sort of business venture, including even the hiring of a web manager. These statements appear to belie the Veteran’s and his representative’s statements that he has entirely stopped working since 2012. Consequently, additional information should be requested regarding the Veteran’s work history. Finally, because a decision on the remanded issue of entitlement to a compensable disability rating for OSA could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to TDIU is required. Accordingly, these matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s service-connected OSA condition. The clinician should determine the baseline level of severity of the Veteran’s OSA condition, prior to its aggravation by the Veteran’s service-connected rhinitis, to the extent that this is medically possible. If the baseline level of severity cannot be established, the clinician should explain why. Past opinions in February 2020 and September 2020 appear to have opined that the baseline level of severity for this condition cannot be established while simultaneously concluding that the Veteran’s OSA has not been worsened. If, on remand, the clinician shares this opinion, the clinician should clarify what the distinction is between “a baseline level of severity” and a condition that has not been worsened. 2. Request additional information regarding the Veteran’s work history with particular attention to the information provided by the Veteran, apparently, to VA treatment providers that led one to describe him as a “food worker” in September 2016 and to describe his engagement in some kind of business, including hiring a web manager in treatment records throughout 2019. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues remaining on appeal, including the issues of entitlement to a compensable rating for the service-connected sleep apnea and entitlement to a TDIU. If either benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.