Citation Nr: 21008042 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-08 648 DATE: February 11, 2021 ORDER For the period from December 8, 2011 to May 15, 2012, entitlement to a rating in excess of 30 percent for a right shoulder disability is denied. For the period from August 1, 2012 to April 8, 2019, entitlement to a rating in excess of 30 percent for a right shoulder disability is denied. For the period from April 9, 2019, entitlement to a rating in excess of 40 percent for a right shoulder disability is denied. For the period from December 8, 2011 to August 13, 2012, a rating in excess of 10 percent for a right knee disability is denied. For the period from October 1, 2012 to April 8, 2019, a rating of 20 percent, but not higher, is granted under Diagnostic Code 5258, subject to the laws and regulations governing the award of monetary benefits. For the period from April 9, 2019, entitlement to a rating in excess of 20 percent for a right knee disability is denied. For the period prior to September 25, 2012, entitlement to total disability based on unemployability (TDIU) is denied. FINDINGS OF FACT 1. From December 8, 2011 to May 15, 2012, the Veteran’s right shoulder disability was manifested by limitation of motion midway between his side and shoulder level, but not by limitation of motion to 25 degrees from his side or less. 2. From August 1, 2012 to April 8, 2019, the Veteran’s right shoulder disability was manifested by limitation of motion midway between his side and shoulder level, but not by limitation of motion to 25 degrees from his side or less. 3. From April 9, 2019, the Veteran’s right shoulder disability was manifested by favorable ankylosis, but not by unfavorable ankylosis. 4. From December 8, 2011 to August 13, 2012, the Veteran’s right knee disability was manifested by limitation of flexion to 45 degrees or greater, but not by limitation of flexion to 30 degrees or less. 5. From October 1, 2012, the Veteran’s right knee disability was manifested by pain. 6. Prior to September 25, 2012, the Veteran’s service-connected disabilities did not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. From December 8, 2011 to May 15, 2012, the criteria for entitlement to a rating in excess of 30 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59 Diagnostic Code 5201. 2. For the period from August 1, 2012 to April 8, 2019, the criteria for entitlement to a rating in excess of 30 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59 Diagnostic Code 5201. 3. For the period from April 9, 2019, the criteria for entitlement to a rating in excess of 40 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59 Diagnostic Codes 5200, 5201. 4. For the period from December 8, 2011 to August 13, 2012, the criteria for entitlement to a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59 Diagnostic Code 5260. 5. For the period from October 1, 2012 to April 8, 2019, the criteria for entitlement to a rating in excess of 10 percent for a right knee limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59 Diagnostic Codes 5260. 6. For the period from October 1, 2012 to April 8, 2019, the criteria for entitlement to a separate rating of 20 percent for right knee disability manifested by pain and locking have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59 Diagnostic Code 5258. 7. For the period from April 9, 2019, the criteria for entitlement to a rating in excess of 20 percent for a right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59 Diagnostic Code 5258. 8. For the period prior to September 25, 2012, the criteria for the assignment of TDIU due to service-connected disabilities have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1986 to July 1988. This case comes before the Board of Veterans’ Appeals (Board) on appeal from August 2012, March 2013, April 2016, October 2018, and October 2020 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in August 2020 for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The RO has awarded several increases during the period on appeal; however, the increases did not constitute full grants of the benefits sought, and the issue of an increased rating remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 1993). In addition, although VA already granted entitlement to a TDIU effective September 25, 2012, the period prior to that date is still for consideration in light of Payne v. Wilkie, 31 Vet. App. 373 (2019) and Harper v. Wilkie, 30 Vet. App. 356 (2018). Under these circumstances, the Board concludes that appellate review may proceed without prejudice to the Veteran. Increased Rating 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). With the initial rating assigned with the award of service connection for a disability, “staged” ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). The intent of the Rating Schedule is 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. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). When determining the severity of musculoskeletal disabilities, which are at least partly-rated on the basis of range of motion, VA must also consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when symptoms “flare up,” such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995), see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that the Veteran underwent a right shoulder surgery in May 2012 and was awarded a temporary total disability rating due to convalescence from May 16, 2012 to July 31, 2012. Accordingly, this period is not on appeal. In addition, the Board also notes that the Veteran underwent a right knee surgery in August 2012 and was awarded a temporary total disability rating due to convalescence from August 14, 2012 to September 30, 2012. Accordingly, this period is not on appeal either. Rating Criteria – Right Shoulder Under Diagnostic Code 5201, the major shoulder is rated as follows: limitation of motion to shoulder level (i.e. 90 degrees) warrants a 20 percent rating; motion limited midway between the side and shoulder level (i.e. less than 90 degrees but more than 25 degrees shoulder motion) warrants a 30 percent rating; and motion limited to 25 degrees or less from the side is rated at 40 percent. 38 C.F.R. § 4.71a. Normal range of shoulder motion is forward extension (flexion) from 0 to 180 degrees; shoulder abduction from 0 to 180 degrees; internal rotation from 0 to 90 degrees; and external rotation from 0 to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5200 evaluates ankylosis of the shoulder, Diagnostic Code 5202 evaluates impairment of the humerus, and Diagnostic Code 5203 evaluates impairment of the clavicle or scapula. The Veteran is right-handed, and therefore, his right shoulder is his major extremity for rating purposes. Rating Criteria – Right Knee Standard motion of a knee joint is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Under DC 5260, for limitation of leg flexion, a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71. Under DC 5261, for limitation of leg extension, a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. Id. Under DC 5257, a 10 percent rating is warranted for slight subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Id. Under DC 5258, a 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the knee joint. Id. The evidence does not show, nor has the Veteran or his representative contended ankylosis, removal of semilunar cartilage, or malunion of the tibia and fibula to warrant ratings under DC 5256, DC 5259, or DC 5262. 1. For the period from December 8, 2011 to May 15, 2012, entitlement to a rating in excess of 30 percent for a right shoulder disability 2. For the period from August 1, 2012 to April 8, 2019, entitlement to a rating in excess of 30 percent for a right shoulder disability. On a March 2013 notice of disagreement, the Veteran asserted that he had painful motion of the right arm and motion limited to below shoulder level. On a March 2014 VA Form 9, the Veteran further asserted that his right shoulder never healed properly after surgery and had worsened since October 2012. He explained that he could not extend his arm straight out from his side or to shoulder height. He described constant pain and limited motion. He also explained that he could not sleep on his right side and could not lift more than approximately five pounds with his right arm. Factual Background A December 2011 private treatment record notes that the Veteran had shoulder pain, mild to moderate guarding, good motion in the range of 160 degrees, but significant end-range pain, and a click-clunk type sensation across the anterior shoulder. A December 2011 VA treatment record notes that the Veteran had been experiencing right shoulder pain following a September 2011 fall. A January 2012 VA treatment record notes that the Veteran experienced discomfort reaching overhead around his back and that he felt a pop in his shoulder. A March 2012 VA treatment record documents increased shoulder pain. A May 2012 VA treatment record documents that the Veteran underwent surgery on his right shoulder. The Veteran was afforded a VA examination for his right shoulder disability in May 2012. The May 2012 VA examiner’s report noted that the Veteran reported flare-ups seemingly associated with the weather. The Veteran also reported that he took pain medication for constant aches and sharp pains. Initial range of motion on flexion was to 90 degrees with objective evidence of pain beginning at 0 degrees and abduction was to 90 degrees with objective evidence of painful motion beginning at 85 degrees. The Veteran was able to perform repetitive-use testing with three repetitions; however, no post-test range of motion measurements were noted. The examiner did note, however, that the Veteran did not have additional limitation in range of motion of the shoulder and arm following repetitive-use testing. Functional loss or impairment was noted due to less movement than normal and pain on movement. The Veteran had localized tenderness or pain on palpation of the joint or soft tissue, but no tenderness to palpation of the AC joint. The Veteran also had guarding of the right shoulder. Muscle strength testing was 4/5 on both abduction and flexion of the shoulder. The Veteran did not have ankylosis. Testing for rotator cuff issues was positive. Imaging studies documented degenerative or traumatic arthritis in the right shoulder. The May 2012 VA examiner determined that the right shoulder disability did not impact the Veteran’s ability to work. An August 2012 VA treatment record noted the Veteran’s reports that his right shoulder had significantly improved since his surgery and that the constant pain was gone. The record also noted the Veteran’s reports of an occasional pop and snap in the shoulder. Reaching overhead and around his back was not difficult. The Veteran had also been using a therapy band to simulate pulling a bow and the Veteran’s treating doctor signed off on a temporary crossbow permit. The Veteran was afforded another VA examination for his right shoulder disability in October 2012. The report noted that the Veteran was right-handed. The report also noted that the Veteran’s right shoulder had improved much since his surgery. Current symptoms at the time of examination included some catching in the right shoulder when the Veteran raised his arm high and occasional snaps and pops. The report also noted that the Veteran did not have pain in his shoulder although pain sometimes occurred rising to a 2/10 pain level. The Veteran did not report any flare-ups. Initial range of motion of the right shoulder on flexion was to 180 degrees with objective evidence of painful motion at 165 degrees and on abduction was to 160 degrees with objective evidence of painful motion beginning at 100 degrees. The Veteran was able to perform repetitive use testing with three repetitions with no change in range of motion measurements with flexion to 180 degrees and abduction to 160 degrees. Internal and external rotation were both to 90 degrees. The examiner noted that the Veteran had less movement than normal in his right shoulder. The Veteran had localized tenderness or pain to palpation of the joints/soft tissue/biceps of the right shoulder, but no tenderness to palpation of the AC joint. The Veteran also had guarding of the right shoulder. However, the Veteran retained 5/5 strength on abduction and flexion of the right shoulder. The Veteran did not have ankylosis. The Veteran did not have a history of mechanical symptoms such as clicking and catching. Rotator cuff testing and cross-body adduction testing were negative. The October 2020 VA examiner determined that the Veteran’s right shoulder disability did not impact his ability to work. A January 2013 VA addendum report to the May 2012 VA examiner’s report was issued to clarify that the Veteran had no additional loss of motion on repetitive use testing and that flexion and abduction both remained to 90 degrees after three repetitions at the time of the May 2012 examination. The Veteran was afforded another VA examination for his right shoulder disability in November 2014. The report again noted that the Veteran was right-hand dominant. Current symptoms at the time of examination included that the right shoulder locked up 3 or 4 times a week, the shoulder snapped, the Veteran had difficulty sleeping on his side due to bilateral shoulder pain, the Veteran had difficulty reaching above shoulder level and with external rotation due to pain, the Veteran had difficulty carrying his granddaughter, and that the Veteran was unable to perform repetitive, heavy lifting. Range of motion testing was abnormal with flexion to 120 degrees, abduction to 100 degrees, external rotation to 80 degrees, and internal rotation to 70 degrees. The Veteran was able to perform repetitive use testing with several repetitions, however, there was additional functional loss due to pain, fatigue, weakness, and lack of endurance and additional loss of range of motion with flexion to 80 degrees, abduction to 80 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees. The examiner determined that range of motion itself contributes to functional loss because the Veteran was unable to perform overhead movements. Pain was noted on abduction, flexion, external rotation and internal rotation, with weight bearing, with heaving lifting, and with movement above shoulder level. The Veteran also had objective evidence of localized tenderness or pain to palpation of the joint or associated soft tissue. The Veteran was not examined after repeated use over time and examination neither supported nor contradicted Veteran’s statements that pain, fatigue, weakness, and lack of endurance limited functional ability with repeated use over time with flexion limited to 80 degrees, abduction to 80 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees. The Veteran was not examined during a flare-up, however, he stated that he was “always” experiencing a flare-up of 8-10/10 severity that lasted all day. The Veteran had a reduction in muscle strength due entirely to the claimed condition in the diagnosis section with strength on forward flexion at 4/5 and on abduction at 3/5. The Veteran did not have ankylosis. A rotator cuff condition was suspected based on positive clinical tests. A clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition was suspected because the Veteran had tenderness to palpation of the AC joint and cross-body adduction testing was positive. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union of the humerus, or malunion of the humerus with moderate or marked deformity. The November 2014 VA examiner’s report noted that the Veteran did not use assistive devices. Imaging studies were available that revealed traumatic or degenerative arthritis in the right shoulder. Occupational impact was noted because the Veteran had difficulty sleeping on his sides due to bilateral shoulder pain, difficulty reaching above shoulder level and with external rotation due to pain, difficulty carrying his granddaughter, and an inability to do repetitive heavy lifting. Analysis The Board finds that for the period from December 8, 2011 to April 8, 2019, excluding the period from May 16, 2012 to July 31, 2012 during which the Veteran was awarded a temporary total disability rating due to convalescence, the evidence does not support assignment of a rating in excess of 30 percent for the Veteran’s right shoulder disability. The Board emphasizes that the Veteran is right hand dominant, therefore, the Veteran’s right shoulder is his major extremity. From December 8, 2011 to April 8, 2019, the Veteran’s worst range of motion measurements occurred in May 2012 and November 2014. The Veteran underwent surgery in May 2012 after his May 2012 VA examination was completed. Nonetheless, even prior to surgery, the Veteran had range of motion on flexion to 90 degrees although objective evidence of pain began at 0 degrees. The November 2014 VA examiner’s report noted greater range of motion on initial testing, but on repetitive use testing, the Veteran’s flexion and adduction were limited to 80 degrees. The remaining range of motion measurements revealed even greater range of motion. The Board notes that normal range of motion of the shoulder on flexion is to 180 degrees. A 30 percent rating for the major shoulder is warranted if range of motion is limited to midway between the side and shoulder level. A greater 40 percent rating requires limitation of motion to 25 degrees from the side. The Board finds that for the period from December 8, 2011 to April 8, 2019, the preponderance of the evidence shows that the Veteran only exhibited limitation of range of motion of the right shoulder to about midway between the right side and shoulder level. No evidence documented limitation of motion of the right shoulder to 25 degrees or less. While the Veteran is shown to experience right shoulder pain, the Court of Appeals for Veterans Claims (Court) has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Here, despite reporting pain in every excursion of motion, the Veteran consistently retained range of motion to midway between his side and shoulder level or greater. Moreover, while he did demonstrate some shoulder weakness, he clearly retained at least 3/5 strength, with no other noted effects of the reduced strength. As such, there is no basis for a higher rating under Diagnostic Code 5201 for his right shoulder disability even with consideration of functional loss due to pain and weakness. Diagnostic Code 5200 evaluates ankylosis of the shoulder, Diagnostic Code 5202 evaluates impairment of the humerus, and Diagnostic Code 5203 evaluates impairment of the clavicle or scapula. The medical record does not document any of these conditions from December 8, 2011 to April 8, 2019. Therefore, these Diagnostic Codes are not applicable for this period. 3. For the period from April 9, 2019, entitlement to a rating in excess of 40 percent for a right shoulder disability Factual Background The Veteran was afforded a VA examination for his right shoulder disability in April 2019. Again, the report noted that the Veteran was right hand dominant. During the examination, the Veteran explained that his right shoulder pain was severe and constant, that it flared daily with flare-ups lasting all day, that his shoulder swelled, clicked, cracked, and popped with any range of motion, that his shoulder flared with weather changes and with slight overuse, and that with bad weather his right shoulder would ache and hurt all day. The Veteran also reported that his right shoulder disability prevented him from performing overhead work, throwing a ball, and picking up his smallest one-year-old grandchild. Initial range of motion testing was abnormal or outside of normal range with flexion to 50 degrees, abduction to 40 degrees, external rotation to 30 degrees, and internal rotation to 90 degrees. Range of motion itself contributed to functional loss because the Veteran was unable to do overhead work with his right upper extremity. Pain was noted on exam on flexion, abduction, and external rotation, and with passive range of motion, weightbearing, and non-weight bearing, which caused functional loss. The Veteran had objective evidence of localized tenderness or pain to palpation of the joint or associated soft tissue and objective evidence of crepitus. The Veteran was not able to perform repetitive use testing with at least three repetitions because of pain. The Veteran was not examined immediately after repetitive use over time but the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time including that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time with range of motion described as flexion to 40 degrees, abduction to 25 degrees, external rotation to 15 degrees, and internal rotation to 80 degrees. The examination also was not conducted during a flare-up but the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups including that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flares ups described as flexion to 25 degrees, abduction to 10 degrees, external rotation to 10 degrees, and internal rotation to 65 degrees. The Veteran retained 5/5 strength on forward flexion and abduction. However, the April 2019 VA examiner’s report did note that the Veteran had favorable ankylosis in adduction up to 60 degrees. A rotator cuff condition was suspected in light of positive clinical tests. Again, the Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. The report noted that the Veteran did not use assistive devices. The report also noted that available imaging studies documented degenerative or traumatic arthritis. The Veteran was afforded another VA examination for his right shoulder disability in September 2020. At the outset, the September 2020 VA examiner’s report noted that the course of the Veteran’s right shoulder disability had progressed and worsened since onset. Again, the report documented that the Veteran was right-hand dominant. Range of motion testing was abnormal, with flexion to 90 degrees, abduction to 90 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees. Abnormal range of motion itself contributed to functional loss because the Veteran was unable to reach above shoulder height and it was difficult for him to reach to clean himself. The Veteran exhibited pain on flexion, abduction, external rotation, and internal rotation as well as with weight bearing and non-weightbearing. The Veteran had objective evidence of localized tenderness or pain to palpation of the joint or associated soft tissue, tenderness on palpation of the AC joint, and objective evidence of crepitus. However, the September 2020 VA examiner’s report noted that the Veteran did not have ankylosis. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. The examination is medically consistent with the Veteran’s statement describing functional loss with repetitive use over time that pain significantly limited functional ability with repeated use over a period of time with flexion to 45 degrees, adduction to 45 degrees, external rotation to 45 degrees, and internal rotation to 45 degrees. The examiner also noted that the examination was not conducted during a flare up, but that pain, weakness, fatigability or incoordination significantly limited functional ability with flareups. The Veteran had a reduction in forward flexion and abduction strength which was 4/5 entirely due to the claimed right shoulder disability. Shoulder instability, dislocation or labral pathology was suspected. No clavicle, scapula, AC joint or sternoclavicular joint condition suspected. No clavicle or scapula condition affected range of motion of the right shoulder. Cross-body adduction testing was negative. The Veteran did not have loss of head (flail shoulder), nonunion (false fail shoulder), or fibrous union of the humerus. The Veteran did not have malunion of the humerus with moderate or marked deformity. The report noted that the Veteran did not use any assistive devices. The examiner determined that the Veteran had occupational impairment because he was unable to lift more than forty pounds, could not lift overhead, and could not pull, push, or reach more than occasionally. The examiner concluded that there was objective and subjective evidence of additional functional impairment and decreased range of motion since 2014 and explained that with arthritis degenerative changes will result in gradual worsening over time. Analysis For the period from April 9, 2019, the Board finds that a rating in excess of 40 percent is not for application. As of April 9, 2019, the Veteran is in receipt of the maximum rating allowed based on range of motion for his right shoulder disability. The only higher ratings available contemplate unfavorable ankylosis or a humerus impairment, which have not been shown. The examiners have specifically determined that humeral impairment is not present. With respect to ankylosis, one examiner found ankylosis, and the other did not. However, the examiner who found ankylosis noted that it was favorable and occurred at 60 degrees, which is not consistent with a rating higher than 40 percent. For a rating higher than 40 percent, the ankylosis must be unfavorable, defined by the rating criteria as involving adduction limited to 25 degrees from the side. The examiner specifically noted that the adduction in question represented ankylosis at 60 degrees. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). 4. For the period from December 8, 2011 to August 13, 2012, a rating in excess of 10 percent for a right knee disability Factual Background A February 2012 private treatment record noted that anterior, posterior, varus, and valgus stability testing revealed that the right knee was stable. The Veteran also had 5/5 strength and full right knee extension. However, the Veteran did have significant tenderness to palpation along the anterior medial joint line. A March 2012 private treatment record noted that the Veteran had pain with squatting and ambulating. The Veteran also reported an event of right knee locking which required assistance from his wife to fully extend his knee. The Veteran was afforded a VA examination in May 2012. The May 2012 VA examiner’s report revealed initial range of motion of the right knee on flexion to 110 degrees with objective evidence of pain beginning at 100 degrees and on extension to 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions with post-test flexion ending at 100 degrees and post-test extension ending at 0 degrees. Functional loss was noted due to less movement than normal and pain on movement. The Veteran had tenderness or pain to palpation for joint line or soft tissues of the knee. The Veteran retained 5/5 strength on both flexion and extension. Anterior instability, posterior instability, and medial-lateral instability testing were normal and there was no evidence or history of recurrent patellar subluxation/dislocation. The report noted that the Veteran used a cane and ankle brace for right ankle stability. Imaging studies documented right knee degenerative or traumatic arthritis but no evidence of patellar subluxation. The examiner determined that the right knee disability did not impact the Veteran’s ability to work. Analysis From December 8, 2011 to August 13, 2012, the Veteran’s right knee disorder was rated as 10 percent disabling under Diagnostic Code 5260 based on limitation of motion (flexion). For entitlement to a higher, 20 percent rating under Diagnostic Code 5260, limitation of flexion to 30 degrees or less must be shown. From December 8, 2011 to August 13, 2012, the Veteran’s flexion was limited at most to 100 degrees. At no time did the Veteran exhibit or report limitation of flexion to 30 degrees or less. Even with consideration of pain complaints, the veteran was clearly able to flex his knee far beyond 30 degrees. Accordingly, a higher rating is not available under Diagnostic Code 5260. In addition, neither a higher rating nor a separate rating is available under 5261 because the Veteran exhibited full extension at each VA appointment and medical examination. The Board acknowledges the Veteran’s complaints that he sometimes experienced an inability to fully extend his right knee without manually straightening it himself or with the assistance of his wife. However, objective evidence including the February 2012 private treatment record and May 2012, October 2012 VA examiner’s report show that the Veteran had normal extension to 0 degrees. The Board finds that the preponderance of the evidence weighs against a higher or separate rating for the Veteran’s right knee disability based on limited extension. The Board also notes the Veterans complaints of instability, especially with maneuvering stairs. When weighing the evidence to determine whether there is lateral instability, objective medical evidence is not automatically more probative than lay evidence. See English v. Wilkie, 30 Vet. App. 347, 353 (2018). However, in the present case, objective instability test results noted in the February 2012 private treatment record and May 2012 VA examiner’s report were negative for any instability. The Board finds that these records are more probative than the lay statements by the Veteran as they were based on objective testing to include Lachman, posterior drawer, valgus, and varus instability testing which consistently revealed no instability, whereas the Veteran’s assertions appear to be based on his subjective feelings. Accordingly, a rating under Diagnostic Code 5257 is not for application either. Moreover, higher ratings are not available under 5256, 5257, 5259, or 5262 as the Veteran did not have ankylosis, removal of semilunar cartilage, or malunion of the tibia and fibula to warrant ratings under DC 5256, DC 5259, or DC 5262. The Board acknowledges the Veteran’s regular reports of locking of his right knee as noted in the March 2012 private treatment record and complaints of pain with movement noted in the February 2012 and March 2012 VA treatment records and during the May 2012 VA examination. Under DC 5258, a 20 percent rating is warranted for dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion. The evidence does not reflect that the Veteran had a dislocated semilunar cartilage nor is there evidence of effusion. In addition, while the Veteran asserts an incident of locking, there is no clinical evidence of locking. Furthermore, the pain reported by the Veteran has already been considered in the 10 percent rating for limitation of flexion and an additional rating for pain would constitute pyramiding which is prohibited. Accordingly, from December 8, 2011 to August 13, 2012 a rating in excess of 10 percent for a right knee disability is denied. 5. For the period from October 1, 2012 to April 8, 2019, a rating in excess of 10 percent for a right knee disability 6. For the period from April 9, 2019, a rating in excess of 20 percent for a right knee disability On a March 2013 notice of disagreement, the Veteran asserted that he had been receiving knee injections, had limited range of motion on flexion, and took pain medication two to three times a week. On a subsequent March 2014 VA Form 9, the Veteran asserted that he had severe instability, clicking and snapping, and locking of his right knee in the morning. The Veteran explained that he sometimes had to physically bend or have his wife bend his knee because pain on movement was so bad. The Veteran also explained that while standing he felt as if his knee would give out. The Veteran described functional impairment including an inability to stand for long periods of time or walk more than 100 feet without adjustment. Factual Background The Veteran was afforded a VA examination for his right knee disability in October 2012. The report noted the Veteran’s current symptoms included pain to the touch on the medial side of his right knee, inability to stand for 20 minutes, a warm feeling with overuse, catching with walking, aching that is 5/10, daily pain ranging from 3-7/10, and that weather affects the knee. The report also noted that symptoms of the Veteran’s right knee meniscus condition included frequent episodes of joint locking. Initial range of motion testing revealed flexion to 100 degrees with objective evidence of painful motion also beginning at 100 degrees and extension was to 0 degrees with no objective evidence of painful motion. Repetitive range of motion testing after three repetitions was the same as initial range of motion measurements with flexion to 100 degrees and extension to 0 degrees. The Veteran had tenderness or pain on palpation of the joint or associated soft tissues. However, the Veteran retained 5/5 strength on flexion and extension of his right knee. Anterior instability, posterior instability, and medial lateral instability testing were all normal and the Veteran did not have a history of recurrent patellar subluxation or dislocation. Imaging studies documented degenerative or traumatic arthritis in the right knee. The report noted that the Veteran constantly used a cane. The October 2012 VA examiner determined that the Veteran’s right knee disability did not impact his ability to work. The Veteran was afforded another VA examination in November 2014. Initial range of motion was noted as all normal with pain noted on exam on both flexion and extension that did not result in or cause functional loss. However, the November 2014 VA examiner’s report noted functional impairment and limitations that included pain with use of and avoidance of stairs and pain with prolonged driving, walking, standing, and sitting. Occupational impairment was also noted due to difficulty using stairs, inability to kneel or squat, and inability to do prolonged standing, walking, or sitting. Current symptoms at the time of examination included aching, locking up, constant pain, difficulty using the stairs, grinding, limitations, inability to kneel or squat, inability to do prolonged standing, walking, or sitting. The report noted objective evidence of tenderness or pain on palpation of the joint or associated soft tissue. The Veteran had no reduction in muscle strength and retained 5/5 strength on flexion and extension. The report noted that the Veteran had no ankylosis, no crepitus, no history of recurrent subluxation, no history of lateral instability, and no objective evidence of pain with weight bearing. All instability testing was normal. The Veteran had a right-side meniscal tear with symptoms of frequent episodes of joint “locking” and frequent episodes of joint pain. The Veteran also had degenerative or traumatic arthritis. The Veteran did not report using any assistive devices. A June 2015 VA treatment record noted that instability testing revealed a stable right knee and that range of motion testing was 0 to 100 degrees. A May 2018 VA treatment record again noted that instability testing was negative. The record also noted that the Veteran had range of motion from 0 to 90 degrees with crepitus in both knees. A January 2019 VA treatment record notes that the Veteran had full extension of his right knee and flexion to approximately 100 degrees. The record also notes that instability testing was negative and that the Veteran retained 5/5 strength but that his knee was tender to palpation. A January 2019 VA treatment record notes that the Veteran received knee injections. A March 2019 VA treatment record notes that the Veteran visited the emergency room due to his right knee. The Veteran was afforded another VA examination in April 2019. Current symptoms at the time of examination included aching, locking, constant pain, difficulty with stairs, and grinding. Limitations caused by the right knee disability include difficulty with using stairs, kneeling, squatting, prolonged standing, prolonged walking, prolonged sitting, and inability to run, jump, climb or use a ladder. The Veteran reported flare-ups and described severe, constant right knee pain that occurred daily and lasted all day. Range of motion testing was abnormal, with flexion to 90 degrees and extension to 0 degrees. Pain was noted on exam on both flexion and extension that caused function loss. There was also evidence of pain with weight bearing, objective evidence of crepitus, and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was unable to perform repetitive use testing with at least 3 repetitions because he experienced too much pain. The Veteran was not evaluated immediately after repetitive use over time but the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time including that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period time with range of motion described as flexion to 60 degrees and extension to 0 degrees. The Veteran also was not examined during a flareup but the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups including that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with flare-ups described as range of motion to 45 degrees on flexion and to 0 degrees on extension. Additional factors contributing to disability included the Veteran’s inability to jump, climb, run, or use ladders. The Veteran did not have a reduction in muscle strength and retained 5/5 strength on flexion and extension. The Veteran also did not have ankylosis, a history of recurrently subluxation, a history of lateral instability, or a history of recurrent effusion. Joint stability testing revealed no instability as interior instability, posterior instability, medial instability, and lateral instability testing was all normal. The Veteran did experience, however, meniscal dislocation, meniscal tear, frequent episodes of joint “locking”, frequent episodes of joint pain, frequent episodes of joint effusion, and frequent episodes of giving way because the medial meniscus complex tear would dislocate daily causing pain, locking, and effusions. The Veteran constantly used a walker inside his home and a cane outside his home. Imaging studies again documented arthritis. A September 2019 VA treatment record notes that the Veteran had complaints of knee pain and concerns with stability using stairs. The record noted, however, that range of motion appeared to be full, strength was normal, that the Veteran did not have ligament laxity, and that the Veteran’s gait was steady with his cane. An October 2019 VA treatment record again notes that the Veteran had a history receiving knee injections and that his knee did not feel stable with walking down steps. A December 2019 VA treatment record noted that the Veteran complained of right knee pain for several years, had pain with weight bearing and especially with stairs, used a cane, and had tenderness. However, the Veteran was still able to fully extend and flex his right knee to about 100 degrees. In addition, the Veteran’s right knee was relatively stable to varus and valgus instability testing and anterior and posterior testing was negative. The Veteran was afforded another VA examination in September 2020. The September 2020 VA examiner’s report noted current symptoms including that the Veteran’s right knee was painful and locked up, that the Veteran was unable to walk more than 100 feet without taking a break and sitting down, that the Veteran walked with a constant limp, that the Veteran’s knees ached and were painful to touch, and that the Veteran used a walking stick all the time or a walker. Range of motion was abnormal with flexion to 90 degrees and extension to 0 degrees. Pain was noted on flexion. Objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was also noted on the right knee anterior that was moderate and connected to degenerative changes. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time but the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time with flexion limited to 70 degrees and extension to 0 degrees. Pain and weakness also significantly limited functional ability with repeated use over a period of time. The Veteran retained 5/5 strength on both flexion and extension. Joint stability testing including anterior instability, posterior instability, medial instability, and lateral instability yielded normal results. The Veteran did not have ankylosis. The examiner described the Veteran’s current condition explaining that the Veteran’s symptoms had worsened and that “[i]t would be expected that functional impairment would gradually worsen in a period of 8 years, as degenerative arthritis is progressive joint deterioration.” Analysis The Board acknowledges that the Veteran was awarded a 20 percent rating under Diagnostic Code 5258 from April 9, 2019. Under DC 5258, a 20 percent rating is warranted for dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion. Although it is not clear whether then Veteran had a meniscus disability, the Veteran regularly reported that his right knee disability was manifested by pain, swelling, and locking. Examinations and lay statements report frequent pain with occasional locking. The Board finds that from October 1, 2012 the Veteran’s right knee symptoms most closely approximated the criteria under this diagnostic code. This is the highest rating available under this diagnostic code. Thus, the Veteran is not entitled to a higher rating under Diagnostic Code 5258. Accordingly, a 20 percent rating is granted for the Veteran’s right knee disability under Diagnostic Code 5258 from October 1, 2012 to April 8, 2019. For entitlement to a rating in excess of 20 percent under Diagnostic Code 5260, limitation of flexion to 15 degrees or less must be shown. From October 1, 2012, VA treatment records and VA examiner’s reports show that the Veteran’s flexion was not limited to 15 degrees or less at any time. Accordingly, a higher rating is not warranted under Diagnostic Code 5260. In addition, a separate rating is not available under 5261 because the Veteran exhibited full extension at each VA appointment and medical examination. Moreover, a separate rating for limitation of motion is also noted for application because the Veteran’s predominant symptom was pain, and locking has not been clinically demonstrated, so assignment of a separate rating for limitation of motion would constitute pyramiding. The Board also notes the Veterans complaints of instability, especially with maneuvering stairs. When weighing the evidence to determine whether there is lateral instability, objective medical evidence is not automatically more probative than lay evidence. See English v. Wilkie, 30 Vet. App. 347, 353 (2018). However, in the present case, objective instability test results noted in the October 2012, November 2014, April 2019 and September 2020 VA examiner’s reports and the June 2015, May 2018, January 2019, and December 2019 VA treatment records were unanimously negative for any instability. The Board finds that these records are more probative than the lay statements by the Veteran as they were based on objective testing to include Lachman, posterior drawer, valgus, and varus instability testing which consistently revealed no instability. Lastly, higher or separate ratings are not available under 5256, 5259, or 5262 as the Veteran did not have ankylosis, removal of semilunar cartilage, or malunion of the tibia and fibula to warrant ratings under DC 5256, DC 5259, or DC 5262. Accordingly, for the period from October 1, 2012 to April 8, 2019, the Veteran’s claim for a rating in excess of 10 percent for a right knee disability is granted with a rating of 20 percent assigned under Diagnostic Code 5258. And, from April 9, 2019, the Veteran’s claim for a rating in excess of 20 percent for a right knee disability is denied. 7. For the period prior to September 25, 2012, entitlement to TDIU Factual Background Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the period from December 8, 2011 to September 25, 2012, the Veteran was awarded service connection for a right shoulder disability at 30 percent (excluding a period of temporary total disability due to convalescence); an acquired psychiatric disability at 30 percent; a right ankle disability at 20 percent (excluding a period of temporary total disability due to convalescence); a right knee disability at 10 percent (excluding a period of temporary total disability due to convalescence); a left calf disability at 10 percent; a ganglion cyst at noncompensable; a right ankle scar at noncompensable; a right shoulder scar at noncompensable; and a right knee scar at noncompensable, with a total combined rating of 70 percent and periods of temporary total disability from May 16, 2012 to July 31, 212 and August 14, 2012 to September 30, 2012. Accordingly, from December 8, 2011 to September 24, 2019 the Veteran met the threshold for consideration of schedular TDIU. An October 2011 private treatment record notes that the Veteran was bow hunting in September 2011 when he fell while tracking a deer. The Veteran was afforded a VA examination for his acquired psychiatric disability in November 2011. The November 2011 VA examiner’s report found that the Veteran’s level of psychiatric impairment resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behaviour, self-care and conversation. The Veteran was afforded a VA examination for his right ankle disability in December 2011. The December 2011 VA examiner’s report noted that the Veteran was able to do some cooking and dishes sitting on a chair and was also able to do laundry. The report also noted that the Veteran was able to talk one mile per day on a treadmill. On the other hand, the report noted that the Veteran was fired from his prior job in July 2009 due to his inability to perform the requirements of a store floor associate and did not do yard work or shopping. An August 2012 VA treatment record noted that the Veteran had been using a therapy band to simulate pulling a bow and the Veteran’s treating doctor approved a temporary crossbow permit. The Veteran was afforded VA examinations for his service-connected right knee and right shoulder disabilities in May 2012. The May 2012 VA examiner determined that the Veteran’s service-connected right knee and right shoulder disabilities did not impact his ability to work. The Veteran was afforded additional VA examinations for his service-connected right knee and right shoulder disabilities in October 2012. The October 2012 VA examiner again determined that the Veteran’s service-connected right knee and right shoulder disabilities did not impact his ability to work. The October 2012 VA examiner’s reports also noted that the Veteran was capable of sedentary work and explained that the Veteran was able to drive a distance of seventy miles alone and without problems and was also able to ambulate around VA grounds with the assistance of a cane and an ankle brace. In a December 2012 statement in support of his claim, the Veteran asserted that he had to close his archery and bait shop because he could no longer perform the duties required of the business. He also stated that he next worked at a sporting goods stores until 2009 when he was terminated because his service-connected ankle disability prohibited him from performing his required duties. The Veteran further asserted that a September 2011 incident further inhibited his ability to work and that he’s had work restrictions since then. Analysis At the outset, the Board finds that the Veteran’s December 2012 statement that he was unable to work since 2009 lacks credibility. The Board acknowledges that the record reflects that the Veteran last worked in 2009. However, the Board also emphasizes that the October 2011 and August 2012 private treatment records indicate that the Veteran continued to hunt and track deer after the last date of reported employment in 2009. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff’d per curium, 78 F.3d 604 (Fed. Cir. 1996) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The Board finds that the most probative evidence of record indicates that prior to September 25, 2012 the Veteran’s service-connected disabilities did not prevent him from engaging in substantially gainful employment. Five VA examiner’s reports found that each of the Veteran’s service-connected right shoulder, right knee, and acquired psychiatric disabilities did not impact his ability to work. The Board also notes that the December 2011 VA examiner’s report indicated that the Veteran was capable of performing some household work and walking one mile on a treadmill. In addition, the October 2012 VA examiner’s report further noted that the Veteran had driven seventy miles for his appointment, ambulated independently, and was capable of sedentary work. The Board’s own review of the evidence shows that during the period at issue, the Veteran clearly was able to engage in activities, including hunting that show he was quite capable of employment even in non-sedentary positions. The Board points out that ultimately the determination of unemployability is the Board’s responsibility. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this case the Board finds that the evidence as a whole, including the VA examination reports and the treatment records, does not support the veteran’s contention that his service-connected disorders rendered him unemployable during the period at issue. Based on the foregoing, the Board finds that the preponderance of the evidence is against the appeal assignment of TDIU prior to September 25, 2012 due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The claim for entitlement to TDIU must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.