Citation Nr: 21006737 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-44 101A DATE: February 5, 2021 ORDER An increased rating higher than 40 percent from August 30, 2012 and continuing thereafter for a thoracolumbar spine disorder, to include degenerative arthritis, degenerative disc disease, degenerative joint disease, herniated nucleus pulposus, foraminal stenosis and intervertebral disc syndrome is denied. An increased rating higher than 10 percent from August 30, 2012 and continuing thereafter for right knee limitation of flexion is denied. A separate 20 percent rating from April 7, 2016 and continuing thereafter for right knee limitation of extension is granted. A separate 30 percent rating from August 30, 2012 and continuing thereafter for right knee instability is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disorders from May 26, 2009 and continuing thereafter is granted. FINDINGS OF FACT 1. For the entirety of the rating period on appeal, the Veteran’s thoracolumbar spine disorder, was at worst, flexion at 20 degrees, extension at 5 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation at 10 degrees and left lateral rotation at 10 degrees with painful motion. 2. For the entirety of the rating period on appeal, the Veteran’s right knee flexion was limited to 70 degrees at worst. 3. With resolution of the doubt in her favor, from April 7, 2016 and continuing thereafter, the Veteran’s right knee extension was limited to 15 degrees at worst. 4. With resolution of the doubt in her favor, for the entirety of the rating period on appeal, the Veteran’s right knee instability manifested as severe lateral instability. 5. With resolution of the doubt in her favor, from May 26, 2009 and continuing thereafter, the Veteran’s service-connected disorders precluded her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish an increased rating higher than 40 percent for the entirety of the rating period on appeal for a thoracolumbar spine disorder have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes (DCs) 5237, 5243 (2019). 2. The criteria to establish an increased rating higher than 10 percent for the entirety of the rating period on appeal for right knee limitation of flexion have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5024-5260 (2019). 3. The criteria to establish a separate 20 percent rating from April 7, 2016 and continuing thereafter for right knee limitation of extension have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5261 (2019). 4. The criteria to establish a separate 30 percent rating for the entirety of the rating period on appeal for right knee instability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5257 (2019). 5. The criteria to establish entitlement to a TDIU from May 26, 2009 and continuing thereafter have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army Reserve from July 1976 to October 1976. Effective May 2009, the Veteran is in receipt of a 100 percent combined schedular evaluation of service-connected disorders. She is in receipt of special monthly compensation (SMC) under 38 U.S.C. § 1114(s) (2012) and 38 C.F.R. § 3.350(i) (2019) from March 8, 2016 and continuing thereafter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of the New York, New York Regional Office (RO). In February 2018, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In June 2018, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2019). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2019). Thoracolumbar spine disorder Under DC 5237, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5237 (2019). A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. There are also several relevant note provisions associated with DC 5237. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in an individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. Under DC 5243, a 40 percent rating is warranted for intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (2019). A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Note (1) defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. Note (2) reflects that if IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. The Veteran is rated 10 percent disabling from November 15, 2006 to March 2, 2011 and 40 percent disabling from March 3, 2011 and continuing thereafter for a thoracolumbar spine disorder under DC 5237. The appellate period is from August 30, 2012, the receipt date of the Veteran’s increased rating claim. In an August 2012 statement, the Veteran reported experiencing low back pain, trouble with sitting, standing, walking and driving. An April 2013 VA treatment record reflects the Veteran’s report of experiencing low back pain. A June 2013 VA treatment record reflects the Veteran having worn a lumbar brace. In the June 2013 VA examination, the Veteran was diagnosed with thoracolumbar spine degenerative disc disease, degenerative joint disease and a herniated nucleus pulposus. The Veteran reported experiencing thoracolumbar spine flare-ups manifested as pain exacerbated by walking and any physical activities. Initial range of motion for the Veteran’s thoracolumbar spine was flexion at 20 degrees, extension at 5 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation at 15 degrees and left lateral rotation at 15 degrees. There was pain on motion. The Veteran could not perform repetitive-use testing with at least three repetitions because the Veteran could barely move in the sitting position due to pain. The Veteran had functional loss of the thoracolumbar spine due to less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion and interference with sitting, standing and/or weight-bearing. Pain to palpation was noted. There were no muscle spasms but the examiner noted guarding resulting in an abnormal gait. The examiner could not conduct muscle strength testing due to severe guarding. Reflex and sensory testing revealed normal findings. The examiner noted no radicular pain, signs or symptoms of radiculopathy, or other neurological abnormalities. The Veteran was diagnosed with IVDS and the examiner noted no incapacitating episodes over the past 12 months due to IVDS. The examiner indicated that the Veteran was dependent on home health-aid. The Veteran used a brace and cane constantly. There were no other pertinent physical findings, scars or vertebral fractures. A September 2013 VA treatment record reflects the Veteran’s report of experiencing low back pain. In a May 2014 VA treatment record, the Veteran reported experiencing low back pain exacerbated by sitting and walking. In an October 2014 addendum to the June 2013 VA examination, the examiner indicated having been unable to specify any additional degree of decreased range of motion without resorting to speculation as it would have to be obtained during a flare-up or after using the joint repeatedly over time. In a November 2015 VA treatment record, the Veteran reported experiencing low back pain exacerbated with sitting and walking. The examiner noted limited range of motion as to the lumbar spine but did not provide measurements. In a February 2016 VA treatment record, range of motion for the Veteran’s thoracolumbar spine revealed flexion at 30 degrees and extension at 0 degrees. In the April 2016 VA examination, the Veteran was diagnosed with thoracolumbar spine degenerative disc disease. The Veteran reported experiencing thoracolumbar spine flare-ups and functional loss manifested as painful motion. The examiner could not conduct range of motion testing due to pain. Marked tenderness on palpation was noted. The Veteran was unable to perform repetitive-use testing with at least three repetitions due to pain. The Veteran was not examined immediately after repetitive-use. Pain, weakness, fatigability and incoordination caused functional loss during repetitive-use. The examiner was unable to describe functional loss in terms of range of motion. The examination was conducted during a flare-up. Pain, weakness, lack of endurance and incoordination caused functional loss during flare-ups. The examiner was unable to describe functional loss in terms of range of motion. There were no muscle spasms. There was localized tenderness and guarding that resulted in an abnormal gait. Markedly limited muscle strength and pain were additional factors that contributed to the Veteran’s disorder. Muscle strength testing could not be conducted due to pain. There was no muscle atrophy, radiculopathy, spine ankylosis, or IVDS. The Veteran used a wheelchair and brace constantly, and a cane regularly. There were no other pertinent physical findings, scars, or thoracic vertebral fractures. In her February 2018 Board hearing, the Veteran testified to experiencing trouble getting out of bed and that her back was “frozen.” The Veteran is not competent, as a lay-person, to provide a self-diagnosis of spine ankylosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran also testified to having been told by her doctors to stay home and not “walk it off” concerning her thoracolumbar spine disorder. However, there was no indication that the Veteran had been prescribed bed rest. In a March 2018 letter, a VA physician indicated having treated the Veteran, in pertinent part, for a lumbosacral strain. There was no indication that the Veteran was diagnosed with or treated for IVDS. The physician indicated that the Veteran’s “intermittent back pain can incapacitate [the Veteran] for 2 weeks at a time” and that “these episodes can occur 4 to 5 times a year and often require bed rest.” The letter reflects that the Veteran’s symptom of intermittent back pain can result in immobility and that bed rest, according to the Veteran, was necessary or required for relief of symptoms. To the extent that the Veteran asserts having been prescribed bed rest, the letter does not indicate that the Veteran was actually prescribed bed rest; rather, it appears that the Veteran reported to the physician that it was necessary for her to lay down in order to alleviate her symptom of intermittent back pain. In the February 2019 VA examination, the Veteran was diagnosed with thoracolumbar spine degenerative arthritis, degenerative disc disease, degenerative joint disease, a herniated nucleus pulposus and foraminal stenosis. The Veteran reported experiencing flare-ups described as an inability to perform activities of daily living and functional loss described as trouble getting around. Initial range of motion for the thoracolumbar spine was flexion at 30 degrees, extension at 10 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right lateral rotation at 15 degrees and left lateral rotation at 15 degrees. There was pain on motion that caused functional loss. Pain with weight-bearing and pain on palpation was noted. The Veteran was unable to perform repetitive-use testing with at least three repetitions due to pain. The Veteran was not examined immediately after repetitive-use and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive-use. The examiner could not indicate, without mere speculation, as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive-use because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner was also unable to describe functional loss with repetitive-use in terms of range of motion due to the above-noted reason. The examination was not conducted during a flare-up and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner could not indicate, without mere speculation, as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner was also unable to describe functional loss during flare-ups in terms of range of motion due to the above-noted reason. Muscle spasms were noted but it did not result in an abnormal gait or abnormal spinal contour. Disturbance of locomotion was an additional factor that contributed to the Veteran’s thoracolumbar spine disorder. Muscle strength testing revealed abnormal findings. Reflex testing revealed normal findings. There was no guarding, muscle atrophy, radicular pain, signs or symptoms due to radiculopathy, spine ankylosis, or other neurological abnormalities. The examiner noted that the Veteran did not have IVDS. The Veteran used a brace and walker constantly. There were no other pertinent physical findings or thoracic vertebral fractures. Passive range of motion testing was not conducted because it was not feasible to do so in a safe and reasonable manner. Non-weight bearing testing was inapplicable because there was no evidence of pain when the thoracolumbar spine was in a non-weight bearing position at rest. In the June 2019 VA addendum, the examiner noted the Veteran’s report of experiencing thoracolumbar spine flare-ups and estimated an additional 5 degree loss of range of motion, in all planes of motion, during flare-ups after repetitive-use. A December 2019 private treatment record reflects a diagnosis of IVDS; however, there was no indication that the Veteran was prescribed bed rest. In the November 2020 brief, the Veteran through her representative, asserted that a 60 percent rating under DC 5243 was warranted because the March 2018 VA letter reflects the Veteran having been prescribed bed rest and the December 2019 private treatment record reflects a diagnosis of IVDS. As noted above, the March 2018 VA letter did not indicate that the Veteran was prescribed bed rest; rather, the Veteran reported to the physician that it was necessary for her to lay down in order to alleviate her symptom of intermittent back pain. The Veteran also asserted that pain and functional loss under 38 C.F.R. §§ 4.40 and 4.45 were not considered in a higher rating for the Veteran’s thoracolumbar spine disorder. When evaluating musculoskeletal disabilities based on limitation of motion, § 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. § 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 § 4.71a (musculoskeletal system). Therefore, 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) (holding that it 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). A preponderance of the evidence is against a finding of an increased rating higher than 40 percent for the entirety of the rating period on appeal for the Veteran’s thoracolumbar spine disorder under DCs 5237 or 5243. Taking into account the June 2019 VA examiner’s estimation of the Veteran having an additional 5 degree loss in range of motion for all planes of motion, the Veteran’s thoracolumbar spine, was at worst, flexion at 20 degrees, extension at 5 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation at 10 degrees and left lateral rotation at 10 degrees with painful motion. Although the Veteran attributed her “frozen” back to spine ankylosis, there is no competent evidence indicating spine ankylosis. In addition, the Veteran has not been prescribed bed rest for her IVDS. Therefore, a higher increased rating is not warranted and the claim is denied. Right knee disorder DC 5024 provides that the diseases under DCs 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under DC 5002. 38 C.F.R. § 4.71a, DC 5024 (2019). Under DC 5260, a 10 percent rating is warranted for limitation of flexion to 45 degrees. 38 C.F.R. § 4.71a, DC 5260 (2019). A 20 percent rating is warranted for limitation of flexion to 30 degrees. Id. A 30 percent rating is warranted for limitation of flexion to 15 degrees. Id. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees, a 10 percent rating for extension limited 10 degrees, a 20 percent rating for extension limited to 15 degrees, a 30 percent rating for extension limited to 20 degrees, a 40 percent rating for extension limited to 30 degrees and a 50 percent rating for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261 (2019). Under DC 5257, slight recurrent subluxation or lateral instability warrants a 10 percent rating, moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5257 (2019). The words “slight,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just,” under 38 C.F.R. § 4.6 (2019). Separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under DCs 5003-5010 and DC 5257 (or under DCs 5258 or 5259) without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 or DC 5261. The Veteran is rated 10 percent disabling from November 15, 2006 and continuing thereafter for a right knee disorder under DC 5024-5260. The appellate period is from August 30, 2012, the receipt date of the Veteran’s increased rating claim. In an August 2012 statement, the Veteran reported experiencing trouble with walking, sitting and standing. She also reported experiencing sensations of instability and “constant falling.” The Veteran is competent to report having experienced right knee instability and DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). A September 2012 VA treatment record reflects the Veteran’s report of experiencing right knee pain and having fallen. A September 2012 right knee radiograph revealed normal findings. An October 2012 VA treatment record reflects the Veteran’s report of experiencing right knee pain and trouble with stairs. The Veteran was observed walking with a cane and an antalgic gait. Right knee range of motion testing revealed flexion at 110 degrees and extension at 0 degrees. Effusion and tenderness was noted. The Veteran was diagnosed with a right knee meniscal tear and inflamed plica. A November 2012 VA treatment record reflects the Veteran’s report of experiencing right knee pain. A history of frequent falls and trouble with walking was noted. In a January 2013 VA treatment record, the Veteran reported experiencing right knee pain and trouble with balance. The Veteran reported having fallen on a bus and on a set of stairs. The Veteran was observed walking with a straight cane and an unsteady gait. In a March 2013 VA treatment record, the Veteran underwent physical therapy and was observed as walking “wobbly.” It was noted that she lost her balance but had recovered. Ankle weights were ordered. In the June 2013 VA examination, the Veteran was diagnosed with a right knee medial meniscal tear, medial plica and patellofemoral syndrome. The Veteran reported experiencing right knee flare-ups described as trouble with walking. Initial range of motion for the right knee revealed flexion at 115 degrees and extension at 0 degrees with no pain on motion. The Veteran could not perform repetitive-use testing with at least three repetitions due to pain. The Veteran had functional loss of the right knee due to less movement than normal, weakened movement, pain on movement and disturbance of locomotion. Pain on palpation was noted. The examiner could not conduct muscle strength or joint stability testing due to the Veteran’s severe guarding. There was no history of recurrent patellar subluxation or tibial and fibular impairments. The examiner noted a right knee meniscal tear but did not indicate joint locking, pain, or effusion. It was noted that the Veteran underwent a meniscectomy in the 1980s with residuals of pain. There were no other pertinent physical findings or scars. The Veteran used a brace and cane constantly. In a September 2013 VA letter, a VA physician indicated that due to the Veteran’s difficulty with balance, she should not be required to use stairs and that she requires assistance using the stairs. A January 2014 VA treatment record reflects the Veteran’s report of experiencing right knee pain. A May 2014 VA treatment record reflects the Veteran’s report of experiencing right knee pain exacerbated with weight-bearing. In an October 2014 VA treatment record, it was noted that the Veteran had fallen twice and that the Veteran’s gait was “very off-balance” and that “she has near falls constantly.” In an October 2014 VA addendum to the June 2013 VA examination, the examiner indicated having been unable to specify any additional degree of decreased range of motion without resorting to speculation because it would have to be obtained during a flare-up or after using the joint repeatedly over time. In a November 2015 letter, a VA physician indicated that the Veteran’s unsteady gait resulted in a high risk for falls. It was noted that the Veteran must walk with the assistance of an aide. A January 2016 VA treatment record reflects the Veteran having been fitted for a right knee orthotic brace for support, pain reduction and assistance in activities of daily living. In a February 2016 VA treatment record, the Veteran reported experiencing right knee pain. The Veteran used a scooter and cane. Right knee tenderness was noted but no effusion. The examiner indicated that the Veteran’s right knee “lacks 10 degrees extension” and flexion was “70-75 degrees.” In the April 2016 VA examination, the Veteran was diagnosed with right knee patellofemoral syndrome with recent post-surgical changes. The Veteran reported experiencing right knee flare-ups and functional loss manifested as right knee pain exacerbated with walking. Initial range of motion testing revealed flexion at 95 degrees and extension at 15 degrees with painful motion. The range of motion contributed to functional loss resulting in uneven walking. There was pain with weight-bearing and localized tenderness. No crepitus was noted. The Veteran was unable to perform repetitive-use testing with at least three repetitions due to pain. The Veteran was not examined immediately after repetitive-use and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive-use. The examiner was unable to state, without mere speculation, as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive-use because the Veteran’s right knee was painful and moderately swollen since her then-most recent surgery. No additional factors contributed to the Veteran’s right knee disorder. Muscle strength testing revealed abnormal findings. There was no muscle atrophy, ankylosis, history of recurrent subluxation, lateral instability, or tibial and fibular impairments. A history of recurrent effusion was noted. Joint stability testing was not conducted. A meniscal condition with frequent episodes of joint pain was noted. The Veteran underwent an arthroscopy in February 2016 with residuals of pain and swelling. There were no other pertinent physical findings. A right knee scar was noted but it was not painful, unstable, or had a total area equal to or greater than 39 square centimeters. The Veteran regularly used a wheelchair, brace and cane. In the February 2018 Board hearing, the Veteran testified to experiencing right knee pain, limited range of motion, trouble with walking and having to sit down due to pain. In the February 2019 VA examination, the Veteran was diagnosed with right knee patellofemoral pain syndrome, possible old medial meniscal trauma and anterior cruciate ligament strain. The Veteran reported experiencing right knee pain with walking and giving out. The Veteran did not report experiencing right knee flare-ups but did report experiencing functional loss described as giving out resulting in falls. Initial range of motion for the right knee was flexion at 120 degrees and extension at 0 degrees with pain on motion. The right knee pain caused functional loss. There was pain on palpation and pain with weight-bearing. No crepitus was noted. The Veteran performed repetitive-use testing with at least three repetitions with additional loss of function or range of motion. The Veteran was not examined immediately after repetitive-use and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive-use. The examiner was unable to state, without mere speculation, as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive-use and in terms of range of motion because there was no conceptual or empirical basis for making such a determination without directly observing function under those circumstances. The examination was not conducted during a flare-up and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare-up. Significantly, the Veteran denied experiencing right knee flare-ups. No additional factors contributed to the Veteran’s right knee disorder. Muscle strength testing revealed abnormal findings. Joint stability testing revealed normal findings. There was no muscle atrophy, ankylosis, history of recurrent subluxation, lateral instability, recurrent effusion, or tibial and fibular impairments. A meniscal condition with frequent episodes of joint pain was noted. There were no other pertinent physical findings. A right knee scar was noted but it was not painful, unstable, or had a total area equal to or greater than 39 square centimeters. The Veteran used a brace regularly and a walker constantly. There was pain on passive range of motion testing and when the joint was used in non-weight bearing. In a June 2019 VA addendum, the examiner indicated that the Veteran denied experiencing right knee flareups and estimated that after repetitive-use, the Veteran would lose an additional 5 degrees of flexion and extension. A preponderance of the evidence is against a finding of an increased rating higher than 10 percent for the entirety of the period on appeal for the Veteran’s right knee disorder under DC 5260. During the entirety of the rating period on appeal, the Veteran’s right knee flexion was 70 degrees with painful motion at worst. Therefore, a higher increased rating is not warranted and the claim is denied. Based on the benefit-of-the-doubt doctrine, the Board grants a separate 20 percent rating from April 7, 2016 and continuing thereafter for the Veteran’s right knee limitation of extension under DC 5261 and a separate 30 percent rating from August 30, 2012 and continuing thereafter for the Veteran’s right knee instability under DC 5257. The evidence reflects that from August 2012 to April 6, 2016, the Veteran’s right knee extension was 0 degrees; however, a VA treatment record dated April 7, 2016 reflects right knee extension limited to 15 degrees. The Veteran has consistently reported experiencing trouble with walking, sensations of instability and right knee giving out resulting in frequent falling. The Veteran has been observed as walking with an “off-balance” gait and a VA physician indicated that the Veteran was at a high risk for falls. The evidence also reflects that the Veteran regularly used several assistive devices. Although the February 2019 VA examination revealed normal findings for joint stability, the evidence reflects otherwise. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, separate ratings are warranted and the claims are granted. A separate rating under DC 5256 is not warranted because the evidence does not show that the Veteran has right knee ankylosis. A separate rating under DC 5258 is not warranted because although the Veteran underwent a meniscal tear with residuals of pain, the evidence does not reflect frequent episodes of locking and effusion. A separate rating under DC 5259 is not warranted because the evidence does not indicate that the Veteran underwent removal of semilunar cartilage. A separate rating under DC 5262 is not warranted because the evidence does not show an impairment of the Veteran’s tibia and fibula. A separate rating under DC 5263 is not warranted because the evidence does not show that the Veteran has genu recurvatum. TDIU The June 2013 VA examiner opined that the Veteran’s thoracolumbar spine and right knee disorder impacted her ability to work because the Veteran “couldn’t do her job any longer at a bank” due to her worsening pain. The issue of entitlement to a TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be assigned, 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, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2019). The Veteran’s service-connected disabilities include posttraumatic stress disorder (PTSD) rated 100 percent disabling from May 26, 2009 and continuing thereafter; thoracolumbar spine disorder rated 10 percent disabling from November 15, 2006 to March 2, 2011 and 40 percent disabling from March 3, 2011 and continuing thereafter; bilateral hearing loss rated 20 percent disabling from March 8, 2016 and continuing thereafter; right knee limitation of flexion rated 10 percent disabling from November 15, 2006 and continuing thereafter; right knee limitation of extension rated 20 percent disabling from April 7, 2016 and continuing thereafter; right knee instability rated 30 percent disabling from August 30, 2012 and continuing thereafter and tinnitus rated 10 percent disabling from March 8, 2016 and continuing thereafter. The Veteran has met the schedular criteria under 4.16(a). The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2019). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that she is incapable “of performing the physical and mental acts required” to be employed. Id. Thus, the central question is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA treatment records reflect the Veteran having been unemployed since 2008. In a November 2012 letter, the Veteran’s former employer indicated having terminated the Veteran due to her psychiatric symptoms. The June 2013 VA examiner opined that the Veteran’s thoracolumbar spine and right knee disorder impacted her ability to work because the Veteran “couldn’t do her job any longer at a bank” due to her worsening pain. The April 2016 VA examiner indicated that the Veteran’s thoracolumbar spine disorder impacted her ability to work because the Veteran would need “constant support” for her back. The February 2019 VA examiner indicated that the Veteran’s thoracolumbar spine impacted her ability to work due to back pain and limited range of motion. The Board will grant a TDIU from May 26, 2009 and continuing thereafter based on the benefit-of-the-doubt doctrine. The evidence reflects that the Veteran’s thoracolumbar spine and right knee disorder have impacted her ability to work. In addition, the November 2012 letter reflects the Veteran having been terminated due to her psychiatric symptoms, and the Veteran has been rated 100 percent disabled because of PTSD since May 26, 2009. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a TDIU is warranted and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, Associate 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.