Citation Nr: 21011478 Decision Date: 03/02/21 Archive Date: 03/01/21 DOCKET NO. 14-37 391 DATE: March 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of left knee disorder is denied. Entitlement to a separate 10 percent, but no higher, rating throughout the appeal period for painful limitation of flexion of the left knee is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a separate 10 percent, but no higher, rating throughout the appeal period for painful limitation of extension of the left knee is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a rating in excess of 20 percent for residuals of right knee disorder is denied. Entitlement to a separate 10 percent, but no higher, rating throughout the appeal period for painful limitation of flexion of the right knee is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a separate 10 percent, but no higher, rating throughout the appeal period for painful limitation of extension of the right knee is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for oral ulcers is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s residuals of left knee disorder has been manifested by slight lateral instability. 2. Throughout the appeal period, the Veteran’s residuals of left knee disorder has been manifested by flexion at most limited to 95 degrees with pain. 3. Throughout the appeal period, the Veteran’s residuals of left knee disorder has been manifested by full extension with pain. 4. Throughout the appeal period, the Veteran’s residuals of right knee disorder has been manifested by moderate lateral instability. 5. Throughout the appeal period, the Veteran’s residuals of right knee disorder has been manifested by flexion at most limited to 85 degrees with pain. 6. Throughout the appeal period, the Veteran’s residuals of right knee disorder has been manifested by full extension with pain. 7. The Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of left knee disorder are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020). 2. Throughout the appeal period, the criteria for a separate 10 percent, but no higher, rating for painful limitation of flexion of the left knee are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.59, 4.7, 4.71a, Diagnostic Codes 5010, 5260 (2020). 3. Throughout the appeal period, the criteria for a separate 10 percent, but no higher, rating for painful limitation of extension of the left knee are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.59, 4.7, 4.71a, Diagnostic Codes 5010, 5261 (2020). 4. The criteria for a rating in excess of 20 percent for residuals of right knee disorder are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020). 5. Throughout the appeal period, the criteria for a separate 10 percent, but no higher, rating for painful limitation of flexion of the right knee are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.59, 4.7, 4.71a, Diagnostic Codes 5010, 5260 (2020). 6. Throughout the appeal period, the criteria for a separate 10 percent, but no higher, rating for painful limitation of extension of the right knee are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.59, 4.7, 4.71a, Diagnostic Codes 5010, 5261 (2020). 7. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 4.18, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from July 1977 to April 1980. These matters are before the Board of Veterans’ Appeals (Board) on appeal from September 2010 and February 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claims for increased ratings for his bilateral knee disabilities and his TDIU claim were previously before the Board in July 2018 when the Board remanded them for further development. The Veteran’s claims for service connection for an acquired psychiatric disorder, sleep apnea, and oral ulcers were previously before the Board in September 2019 when the Board remanded them for further development. Increased Rating – Bilateral Knee Disabilities The Veteran and his attorney contend the Veteran is entitled to increased ratings for his bilateral knee disabilities. See VA Form 9, Appeal to Board of Veterans’ Appeals, dated September 29, 2014. The Agency of Original Jurisdiction (AOJ) has assigned the Veteran’s left knee disability a 10 percent rating throughout the appeal period under hyphenated Diagnostic Code 5257-5010. The AOJ has assigned the Veteran’s right knee disability a 20 percent rating throughout the appeal period under Diagnostic Code 5257. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that the Veteran’s left knee disability is rated, by analogy, under the criteria for traumatic arthritis (Diagnostic Code 5010) and recurrent subluxation or lateral instability (Diagnostic Code 5257). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Degenerative and/or traumatic arthritis as shown by X-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the United States Court of Appeals for Veterans Claims (Court) rejected VA’s argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. The Court held that under § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that § 4.59 does not require “objective” evidence but can be satisfied with lay and other non-medical evidence. Id. at 429. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Under Diagnostic Code 5258, a 20 percent rating is warranted for cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. Under Diagnostic Code 5259, a separate 10 percent rating may be assigned for the removal of cartilage, semilunar, that is symptomatic. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, 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. § 4.71a. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension of the knee 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. 38 C.F.R. § 4.71a. Normal ranges of motion of the knee are to 0 degrees in extension, and 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). The Veteran may also be assigned separate ratings for limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). The rating criteria for subluxation and lateral instability under Diagnostic Code 5257 were revised during the course of the Veteran’s appeal, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Under the amended rating criteria for patellar instability under Diagnostic Code 5257, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Under the amended rating criteria for recurrent subluxation or lateral instability under Diagnostic Code 5257, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See VAOGCPREC 7-2003. Additionally, VA’s Office of General Counsel has determined that the amended rating criteria can be applied only for the period from and after the effective date of the regulatory change. The Board can apply only the former regulation to rate the disability for periods preceding the effective date of the regulatory change. However, the former rating criteria may be applied prospectively, beyond the effective date of the new regulation. See VAOPGCPREC 3-2000. Consideration of other diagnostic codes for rating a knee disability (5256, 5262, 5263) is inappropriate in this case as the Veteran’s bilateral knee disabilities do not include the pathology required in the criteria for those diagnostic codes (ankylosis, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. Here, the Board will discuss the factual evidence as it relates to the Veteran’s bilateral knee disabilities prior to addressing the assigned ratings. The Veteran attended a pre-employment physical in October 2009 for an evaluation of his knees. The Veteran had left knee flexion to 95 degrees and full extension. With the right knee, the Veteran had flexion to 90 degrees and full extension. The Veteran had pain with range of motion bilaterally, but the examination report does not reflect whether the pain was with flexion or extension. The Veteran did not have fatigue, weakness, lack of endurance, or incoordination with range of motion bilaterally. Upon additional range of motion testing, the Veteran had left knee flexion to 95 degrees and full extension. With the right knee upon additional range of motion testing, the Veteran had flexion to 85 degrees and full extension. Upon additional range of motion testing, the Veteran had pain with range of motion bilaterally. The Veteran did not have fatigue, weakness, lack of endurance, or incoordination with range of motion bilaterally upon additional range of motion testing. The report reflects that the Veteran had an antalgic gait, and that he had functional limitation in the form of decreased walking ability. The Veteran did not have any instability in the knee joint. The report reflects that the Veteran’s knee disabilities had a mild to moderate effect on the Veteran’s usual occupation and daily activities. The Veteran reported that the symptoms of his knee disabilities were pain, weakness, stiffness, heat, instability, giving away, locking, and lack of endurance. The Veteran reported no flare-ups. He reported using a cane and brace for pain and swelling with ambulation. Furthermore, he reported taking Gabapentin and Motrin three times a day as needed. A right knee X-ray showed spurring off the distal femur, proximal tibia, and the patella; large calcification posterior to proximal tibia; and bony growth off of distal posterior femur. An October 2012 bilateral knee X-ray showed mild joint space narrowing medial compartment. The physical examination accompanying the X-ray reflects that the Veteran had no effusion bilaterally, mild tenderness over medial joint line, no instability, and full extension bilaterally with flexion to 100 degrees. The Veteran reported at the appointment that his bilateral knee pain is worse with weather changes and running. The Veteran was prescribed medial unloader knee braces. The Veteran attended a VA examination in May 2016 for an evaluation of his knees. The Veteran had left knee flexion to 125 degrees with pain and full extension with pain. With the right knee, the Veteran had flexion to 110 degrees with pain and full extension with pain. The examiner noted that range of motion itself did not contribute to functional loss bilaterally. The examiner noted that the pain with flexion and extension bilaterally caused functional loss. The Veteran had pain with weight bearing bilaterally. There was objective evidence of localized tenderness and pain on palpation bilaterally and evidence of crepitus bilaterally. The Veteran was able to perform repetitive use testing bilaterally without additional loss of function or range of motion. The examiner noted there were no additional contributing factors of disability bilaterally. The Veteran had normal strength bilaterally, no muscle atrophy bilaterally, and no ankylosis bilaterally. The Veteran had no recurrent subluxation, lateral instability, or effusion bilaterally. The examiner noted that the Veteran had a meniscal condition in the right knee, characterized by pain and stiffness. The Veteran was noted to use a brace bilaterally on a regular basis for knee pain. In terms of the functional impact of the Veteran’s knee disabilities, the examiner noted that the Veteran could do light sedentary work. The Veteran reported bilateral knee pain, stiffness, swelling, and give way. He reported flare-ups in the form of pain and swelling. An August 2018 VA treatment note reflects that the Veteran had bilateral knee pain and that the Veteran reported his left knee gave out often. The Veteran attended an additional VA examination in March 2019 for an evaluation of his knees. The Veteran had left knee flexion to 100 degrees with pain and full extension with pain. With the right knee, the Veteran had flexion to 110 degrees with pain and full extension with pain. The examiner noted that range of motion itself did not contribute to functional loss bilaterally. The examiner noted that the pain with flexion and extension bilaterally did not cause functional loss. The Veteran had pain with weight bearing bilaterally. The Veteran had pain to palpation of the joint lines bilaterally and evidence of crepitus bilaterally. The Veteran was able to perform repetitive use testing bilaterally without additional loss of function or range of motion. With repeated use, the examiner noted that pain, weakness, fatigability, and incoordination did not significantly limit functional ability bilaterally. The examiner noted that additional factors contributing to disability bilaterally were less movement than normal, disturbances of locomotion, and interference with standing. The Veteran had normal strength bilaterally, no muscle atrophy bilaterally, and no ankylosis bilaterally. The Veteran had no recurrent subluxation, lateral instability, or effusion bilaterally. The examiner noted that the Veteran had a meniscal condition in the right knee, characterized as a meniscal tear. The examiner noted that residuals of the Veteran’s right knee surgery was decreased range of motion and chronic pain. The Veteran was not noted to use any assistive devices. In terms of the functional impact of the Veteran’s knee disabilities, the examiner noted that his bilateral knee disabilities would impair his ability for physical work requiring any prolonged periods of standing, walking, climbing, or repetitive bending. In addition, in compliance with the July 2018 Board remand, the examiner noted that the Veteran had pain on passive range of motion testing and there was evidence of pain when the joint was used in non-weight bearing. The Veteran reported daily bilateral knee pain that increases with prolonged standing, walking, and repetitive bending. The Veteran reported no swelling and no locking of his knees. He reported that his right knee gives out. Furthermore, he reported receiving no specific treatment for his pain. In addition, he reported no flare-ups. Aside from the medical evidence addressed above, the Board acknowledges the Veteran’s October 2009 VA Form 21-4138, Statement in Support of Claim, in which the Veteran stated he had increased knee pain, he had problems of weakness and giving out. Furthermore, the Veteran reported in the October 2009 statement that the knee weakness caused him to trip and fall many times. In addition, the Board acknowledges the Veteran’s testimony at the January 2014 Decision Review Officer hearing where the Veteran stated his knee pain was severe and that normal everyday activities caused his knees to worsen. In addition, he reported that he had to lean up against something to dress because his knee gave out. The Board also acknowledges the Veteran’s sisters’ May 2018 and June 2018 written statements in which they stated the Veteran’s knees really bother him, they have noticed him limping, and that he lost his ability to do many things he once enjoyed, like playing basketball. Regarding the Veteran’s 10 percent rating for his residuals of left knee disorder under hyphenated Diagnostic Code 5257-5010 and 20 percent rating for his residuals of left knee disorder under hyphenated Diagnostic Code 5257-5010, the Board concludes that the evidence most nearly approximates the currently assigned 10 percent rating for the Veteran’s left knee disability and 20 percent rating for the Veteran’s right knee disability under Diagnostic Code 5257. For the reasons that follow, the Board has concluded that the Veteran’s residuals of left and right knee disorders currently rated under hyphenated Diagnostic Code 5257-5010 are most appropriately evaluated under Diagnostic Code 5257 for the entire appeal period. VA can change the diagnostic code that a particular disability is rated under so long as the rating under that diagnostic code has not been in effect for 20 years. See 38 C.F.R. § 3.951(b); see Murray v. Shinskeki, 24 Vet. App. 420, 425 (2011). VA must explain the change in the diagnostic code. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran’s consistent reported symptom throughout the appeal period of his knees giving out illustrates the Veteran’s left and right knee disabilities cause instability, so the Board concludes that Diagnostic Code 5257 best reflects the symptomatology of the Veteran’s bilateral knee disabilities. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). In addition, removing Diagnostic 5010 from the hyphenated Diagnostic 5257-5010 does not reduce the Veteran’s rating at any time during the appeal period for either knee. Accordingly, the Board has changed the Diagnostic Code to 5257 for the residuals of left and right knee disorders for the entire appeal period. Regarding the Veteran’s 10 percent rating for his left knee under Diagnostic Code 5257, the medical evidence of record illustrates that there has been no point during the appeal period where the Veteran has had moderate recurrent subluxation or lateral instability, the requirement for a higher 20 percent rating under the former rating criteria of Diagnostic Code 5257. The October 2009 physical examination reflects no instability. Furthermore, the May 2016 and March 2019 VA examinations reflect no recurrent subluxation or lateral instability and normal strength. The Board acknowledges that the Veteran has reported throughout the appeal period, including at the October 2009 physical examination and at the May 2016 VA examination, that his left knee gives way and that he has instability. Furthermore, VA treatment records during the appeal period reflect that the Veteran reported that his left knee gives out. In addition, the record up until the March 2019 VA examination reflects that the Veteran used a knee brace. The Veteran is competent to report the symptoms of instability, as the manifestations are readily observable to even a lay person, and the Board finds the Veteran’s reports to be credible. See English v. Wilkie, 30 Vet. App. 347 (2018). However, the Veteran’s reports of instability reflect no more than slight instability of the knee throughout the appeal period. As there is no evidence of moderate lateral instability or recurrent subluxation during this period, a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5257 under the former rating criteria. Regarding the Veteran’s 20 percent rating for his right knee under Diagnostic Code 5257, the medical evidence of record illustrates that there has been no point during the appeal period where the Veteran has had severe recurrent subluxation or lateral instability, the requirement for a higher 30 percent rating under the former rating criteria of Diagnostic Code 5257. The October 2009 physical examination reflects no instability. Furthermore, the May 2016 and March 2019 VA examinations reflect no recurrent subluxation or lateral instability and normal strength. The Board acknowledges that the Veteran has reported throughout the appeal period, including at the October 2009 physical examination and at the May 2016 VA and March 2019 VA examinations, that his right knee gives way and that he has instability. In addition, the record up until the March 2019 VA examination reflects that the Veteran used a knee brace. The Veteran is competent to report the symptoms of instability, as the manifestations are readily observable to even a lay person, and the Board finds the Veteran’s reports to be credible. See English, 30 Vet. App. 347. However, the Veteran’s reports of instability reflect no more than mild instability of the knee throughout the appeal period. Notwithstanding the evidence of no more than mild instability, the Board will not disturb the currently assigned 20 percent rating for the Veteran’s right knee under Diagnostic Code 5257. As there is no evidence of severe lateral instability or recurrent subluxation during this period, a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5257. In evaluating the Veteran’s increased rating claims for his knees, the Board must address the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board recognizes the Veteran’s statements that his bilateral knee disabilities cause pain. Furthermore, he reported his bilateral knee disabilities cause difficulties with prolonged standing, walking, and repetitive bending. In addition, the Veteran reported bilateral knee pain with running and difficulties dressing. However, even when considering the reported functional loss, the Veteran’s disability picture did not more nearly approximate moderate lateral instability throughout the appeal period. As is noted above, VA amended the rating criteria for Diagnostic Code 5257, effective February 7, 2021. However, even when considering the amended rating criteria, ratings in excess of 10 percent and 20 percent for the Veteran’s left and right knees respectively are not warranted under the amended rating criteria from February 7, 2021. Regarding the Veteran’s 10 percent rating for his left knee lateral instability, a 20 percent rating requires that a medical provider prescribes a brace and/or a cane, crutches, or walker for ambulation. Regarding the Veteran’s 20 percent rating for his right knee lateral instability, a 30 percent rating requires a failed repair of a complete ligament tear causing persistent instability, and a prescription from a medical provider for an assistive device and a bracing for ambulation. The Board notes that the Veteran was noted to be using knee braces on a regular basis for his knee pain at the May 2016 VA examination. However, the March 2019 knee VA examination report reflects no use of a knee brace or any other assistive device. The Board acknowledges that Dr. S.E., a private physician, noted in a July 2020 functional impact statement that the Veteran “is only able to walk for 20 minutes, slowly and assisted with a cane, due to his knees, hips, and back pain.” First, the statement from Dr. S.E. attributes the use of a cane to the Veteran’s hip and back pain, along with his bilateral knee pain. Second, the statement is not a prescription for an assistive device, as is required by the amended rating criteria. Thus, as the record does not reflect a prescription from a medical provider for an assistive device for either knee going back to at least the March 2019 knee VA examination, higher ratings under the amended rating criteria are not warranted for either knee. The Board has considered whether the Veteran is entitled to a separate compensable rating for limitation of flexion of his left and right knees under Diagnostic Code 5260. The Board concludes the evidence more nearly approximates a finding that the Veteran is entitled to a 10 percent, but no higher, rating for an actually painful left and right knee joint on flexion throughout the appeal period under hyphenated Diagnostic Code 5260-5010, given the X-ray evidence of bilateral knee arthritis and painful flexion. The October 2009 physical examination for an employment physical revealed the Veteran had reduced left knee flexion to 95 degrees and right knee flexion to 85 degrees. The Board acknowledges that the physician conducting the examination noted that the Veteran had pain with range of motion, but the employment physical report does not reflect whether the pain was with flexion, extension, or both. The May 2016 VA examination report reflects that the Veteran had reduced left knee flexion to 125 degrees with pain and right knee flexion to 110 degrees with pain, and the March 2019 VA examination report reflects that the Veteran had reduced left knee flexion to 100 degrees with pain and right knee flexion to 110 degrees with pain. Therefore, based on the Veteran’s consistent reports throughout the appeal period and the VA examinations specifically showing pain with flexion, the Board has afforded the Veteran the benefit of the doubt in assigning the Veteran a 10 percent, but no higher, rating for an actually painful left and right knee joint on flexion throughout the appeal period. A rating in excess of 10 percent is not warranted at any point throughout the appeal period because the Veteran has had no point where his flexion in either knee has been less than 45 degrees, even when considering additional factors of pain, fatigue, and weakness. Therefore, the evidence warrants a 10 percent, but no higher, rating for each knee based on painful limitation of flexion pursuant to 38 C.F.R. § 4.59 throughout the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5260-5010. The Board has considered whether the Veteran is entitled to a separate compensable rating for limitation of extension of his left and right knees under Diagnostic Code 5260. The Board concludes the evidence more nearly approximates a finding that the Veteran is entitled to a 10 percent, but no higher, rating for an actually painful left and right knee joint on extension throughout the appeal period under hyphenated Diagnostic Code 5261-5010, given the X-ray evidence of bilateral knee arthritis and painful extension. The October 2009 physical examination for an employment physical revealed the Veteran had full left knee extension and right knee extension. The Board acknowledges that the physician conducting the examination noted that the Veteran had pain with range of motion, but the employment physical report does not reflect whether the pain was with flexion, extension, or both. The May 2016 and March 2019 VA examination reports reflect that the Veteran had full left knee extension with pain and full right knee extension with pain. Therefore, based on the Veteran’s consistent reports throughout the appeal period and the VA examinations specifically showing pain with extension, the Board has afforded the Veteran the benefit of the doubt in assigning the Veteran a 10 percent, but no higher, rating for an actually painful left and right knee joint on extension throughout the appeal period. A rating in excess of 10 percent is not warranted at any point throughout the appeal period because the Veteran has had no point where his extension in either knee has been limited to more than 10 degrees, even when considering additional factors of pain, fatigue, and weakness. Therefore, the evidence warrants a separate 10 percent, but no higher, rating for each knee based on painful extension pursuant to 38 C.F.R. § 4.59 throughout the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5261-5010. The Board has also considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5258 or Diagnostic Code 5259 for a right knee semilunar cartilage condition as the Veteran underwent right knee surgeries in 1982 and 2005. The 2005 surgery included a partial lateral meniscectomy. Regarding Diagnostic Code 5258, a review of the evidence illustrates that the Veteran has not been noted to have frequent episodes of effusion or locking in the right knee at any point during the appeal period. Additionally, the symptom of joint pain is contemplated by the ratings assigned for flexion and extension, and any separate rating on this basis would result in impermissible pyramiding. See 38 C.F.R. § 4.14 (“[t]he evaluation of the same disability under various diagnoses, “a practice called ‘pyramiding,’” is to be avoided); Brady v. Brown, 4 Vet. App. 203, 206 (1993) (the rationale for the prohibition on pyramiding is that “the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment” suffered). Therefore, a preponderance of the evidence is against awarding a separate compensable rating for the right knee under Diagnostic Code 5258. Regarding Diagnostic Code 5259, the record illustrates evidence of symptomatic removal of cartilage as the record demonstrates right knee pain throughout the appeal period. However, the Veteran’s symptoms of joint pain and reduced range of motion are contemplated by the ratings assigned for flexion and extension throughout the appeal period. Therefore, assigning a separate rating under Diagnostic Code 5259 for these symptoms would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. Therefore, the Board concludes that a preponderance of the evidence is against a finding that a separate rating under Diagnostic Code 5259 is warranted for the right knee. A separate rating under Diagnostic Code 5258 or 5259 is not warranted for the left knee as the record does not contain evidence that the Veteran has a left knee semilunar condition. In sum, the Board finds the criteria for a rating in excess of 20 percent for the Veteran’s residuals of left knee disorder under Diagnostic Code 5257 have not been met. The Board finds that the Veteran is entitled to a separate 10 percent, but no higher, rating for painful limitation of flexion of the left knee throughout the period on appeal. The Board finds that the Veteran is entitled to a separate 10 percent, but no higher, rating for painful limitation of extension of the left knee throughout the period on appeal. The Veteran is not entitled to any further separate ratings for the left knee. Regarding the right knee, the Board finds the criteria for a rating in excess of 10 percent for the Veteran’s residuals of right knee disorder under Diagnostic Code 5257 have not been met. The Board finds that the Veteran is entitled to a separate 10 percent, but no higher, rating for painful limitation of flexion of the right knee throughout the period on appeal. The Board finds that the Veteran is entitled to a separate 10 percent, but no higher, rating for painful limitation of extension of the right knee throughout the period on appeal. The Veteran is not entitled to any further separate ratings for the right knee. TDIU The Veteran and his attorney contend the Veteran is entitled to TDIU due to his service-connected back, bilateral hip, and bilateral knee disabilities. See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, dated November 18, 2009. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Court recently held that “substantially gainful occupation” contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component “simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The non-economic component requires consideration of the Veteran’s history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Further, the word “substantially” suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In this case, the Veteran has met the schedular requirements for a TDIU throughout the applicable appeal period as the Veteran’s combined rating for his service-connected disabilities has been at least 70 percent since May 2008. Furthermore, the Veteran’s rating of 40 percent for his lumbar spine disability throughout the appeal period meets the requirement of having at least one disability rated at 40 percent or more when there are two or more disabilities and sufficient additional disability to bring the combined rating to 70 percent or more. Thus, the schedular requirements for a TDIU rating are met throughout the appeal period. During this period, the Veteran has also been service-connected for left and right knee conditions, left and right hip conditions, right lower extremity radiculopathy, and scars associated with his right knee disability. The question remaining is whether the Veteran’s service-connected disabilities (alone) render him incapable of participating in a substantially gainful occupation. Here, a balance of the evidence supports a finding that the Veteran’s service-connected disabilities substantially impact his ability to secure and engage in types of employment at any exertional level. The Veteran reported in a November 2009 VA Form 21-8940 that he is too disabled to work due to his service-connected knee, back, and hip disabilities. He indicated in a July 2020 VA Form 21-8940 that he last worked full-time in March 2020. He noted that he had completed high school, had training at a truck driving school, and had previously worked as a motor vehicle operator. The Veteran also indicated in the July 2020 VA Form 21-8940 that he became too disabled to work in May 2014. The Veteran reported to Dr. S.E., a private physician, in July 2020, that his employment that ended in March 2020 with VA was for driving veterans to and from appointments. The Veteran reported that he was employed at VA for about four months, which aligns with his July 2020 VA Form 21-8940, and the Veteran reported that he has issues sitting for very long due to his knee, hip, and back pain. Following a review of the record and a consultation with the Veteran, Dr. S.E., opined in July 2020 that it is as likely as not that the combination of pain and limitations caused by the Veteran’s service-connected disabilities prevent him from being able to work. Dr. S.E. provided the following functional limitations based on his consultation with the Veteran: . . . he would be unable to stand for 20 minutes without needing to lean on something because his knees, hips and back hurt too much. He is only able to walk for 20 minutes, slowly and assisted with a cane, due to his knees, hips, and back pain. He can sit for a total of 30 minutes at a time, depending on the chair, but he is uncomfortable for a lot of that time due to his knee, hip, and back pain. He is unable to lift or carry more than 10 pounds due to his knees, hips, and back. Due to these issues, [the Veteran] would be required to miss work or leave early three or more days per month due to the pain and limitations from his knees, hips and back particularly, would need more than one additional break per day aside from normally scheduled morning, lunch, and afternoon breaks so he can lie down, recline, stretch, etc., and for more than three days per month he would not stay focused for at least 7 hours of an eight-hour workday due to his pain and extra needed breaks. He is in constant pain and often has difficulty concentrating and staying focused. Due to his pain, he sleeps poorly at night. This is noted in his treatment records dating back to at least 2007. He noted that he is not able to stay in one position for very long before he must reposition himself, recline, or get up and move around. Dr. S.E. then concluded that based on the functional limitations noted above that the Veteran would not be able to maintain substantially gainful employment, factoring in the Veteran’s relevant work and educational background. Dr. S.E. opined that the Veteran was unable maintain substantially gainful employment since “at least” May 2014. In providing the opinion, Dr. S.E. noted the Veteran’s work attempt since May 2014, but Dr. S.E. noted that he was only able to work for a short period of time due to his knees, hips, and back. Furthermore, in support of the opinion, Dr. S.E. provided a detailed discussion of the medical evidence of record. The Board affords great probative weight to the July 2020 opinion of Dr. S.E. as the opinion is consistent with limitations assessed in the March 2019 lumbar spine and knee VA examinations. Furthermore, the July 2020 opinion is consistent with the Veteran’s statement regarding his employment from November 2019 to March 2020 as a driver at VA and how his service-connected disabilities affected the employment. The March 2019 VA examiner also noted that the Veteran’s bilateral knee disabilities would impair his ability for physical work requiring any prolonged periods of standing, walking, climbing or repetitive bending. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). Based on the foregoing, the Board finds that the overall evidence of record is at least in equipoise as to a finding that the Veteran would have difficulty with most occupations due to his service-connected disabilities, including his previous occupation as a driver. Therefore, the Board concludes the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities and that entitlement to a TDIU is warranted. An award of special monthly compensation (SMC) at the housebound rate may be awarded if the Veteran has a service-connected disability rated as total, and has additional service-connected disability or disabilities independently ratable at 60 percent or more. 38 U.S.C. § 1114(s)(1). Specifically, SMC is payable at the housebound rate where the veteran has a single service-connected disability rated as 100-percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Board has considered whether SMC at the housebound rate is warranted. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). In this case, the grant of TDIU is based on the Veteran’s combined service-connected disabilities rather than a single disability. Even if the disabilities are considered a single service-connected disability because they arose out of a single incident, the Veteran does not have service-connected disabilities independently ratable at 60 percent, separate and distinct from the disabilities warranting the grant of TDIU. In this case, the Veteran’s service-connected lumbosacral degenerative disc disease, left and right hip disabilities, and left knee disability are secondary to his service-connected right knee injury. Therefore, SMC at the housebound rate is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. Initially, the Board notes that the Board cannot make a fully-informed decision on this claim as no VA examiner has opined whether the Veteran’s diagnosed sleep apnea is directly related to his service. Following the September 2019 Board remand where the Board requested an opinion as to whether the Veteran’s sleep apnea has been aggravated by a service-connected disability, the Veteran alleged at a June 2020 VA examination that his excess snoring and daytime sleepiness began in 1980. As the Veteran’s active duty ended in April 1980, an opinion as to whether the Veteran’s sleep apnea is directly related to his service is necessary. In addition, the Veteran and his attorney have contended that the Veteran’s sleep apnea is caused or aggravated by his acquired psychiatric disorder. Because a decision on the remanded issue of service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of service connection for sleep apnea, the issues are inextricably intertwined. Thus, remand of the claim for service connection for sleep apnea is required. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability, is remanded. A review of the record illustrates that L.C., a private physician, and R.W., a private psychologist, provided opinions in March 2019 after interviewing the Veteran in July 2018. In the opinions, they opined that the “[V]eteran’s progressive mental health conditions more likely than not began in the military and continues uninterrupted to the present time.” They also opined that the “[V]eteran’s mental health symptoms are more likely than not permanently aggravated by his service connected bilateral knee conditions and non-service connected sleep apnea, hip replacements and history of alcohol and cocaine self-medication.” Dr. L.C. and R.W. provided a summary of the evidence of record, including the July 2018 interview of the Veteran and the 2018 statements from the Veteran’s sisters. However, Dr. L.C. and R.W. did not provide any rationale as to how the Veteran’s acquired psychiatric disorder is directly related to his service, or how the Veteran’s service-connected disabilities have aggravated his acquired psychiatric disorder. In addition, they did not provide any analysis of what the baseline level of severity of the Veteran’s acquired psychiatric disorders would be absent his service-connected disabilities. As such, in the September 2019 Board remand, the Board requested a VA opinion regarding whether the Veteran’s service-connected disabilities have aggravated any acquired psychiatric disorder. A VA examiner provided such opinion in June 2020. However, an additional remand is required to obtain an opinion as to whether the Veteran’s acquired psychiatric disorder is directly related to his service or caused by any service-connected disability. 3. Entitlement to service connection for oral ulcers is remanded. Following the Board’s September 2019 remand to obtain an opinion as to whether the Veteran’s oral ulcers are directly related to service, to include exposure to contaminants in the water supply at Camp Lejeune, a VA examiner opined in August 2020 that the Veteran’s oral ulcers were less likely than not incurred in or caused by the contaminants in the water supply at Camp Lejeune. In support of the opinion, the VA examiner noted that there is a long latency period between the Veteran’s exposure at Camp Lejeune and his aphthous ulcers. The examiner also noted that the Veteran does not have the known risk factors for aphthous ulcers. Furthermore, the examiner noted that the Veteran has negative family history, occupational history, and pre/post service experiences pertinent to aphthous ulcers. The VA examiner then commented on numerous scientific articles on mouth ulcers. However, aside from the rationale addressing the long latency period, the rationale provided by the VA examiner and a number of the scientific articles cited to by the Veteran conflict with the examiner’s conclusion that the Veteran’s oral ulcers were less likely than not incurred in or caused by the contaminants in the water supply at Camp Lejeune. The examiner stated that the four major Camp Lejeune water contaminants are considered likely human carcinogens, but did not explain why a causal relationship between the contaminants and aphthous ulcers cannot be established. Given the conflict between the conclusion and rationale, an additional VA opinion as to the etiology of the Veteran’s oral ulcers is necessary. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s electronic record VA treatment records from January 2020 to the present. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, obtain a medical opinion from an appropriate medical professional for the Veteran’s sleep apnea claim. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. If the medical professional determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical professional should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is related or attributable to his military service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is caused by any service-connected disability (including any acquired psychiatric disorder, if and only if service-connected)? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is aggravated (i.e., any increase in the severity beyond its natural progression) by any service-connected disability (including any acquired psychiatric disorder, if and only if service-connected)? In addressing questions (b.) and (c.), if and only if the Veteran’s acquired psychiatric disorder is service-connected, the medical professional is asked to specifically address the article titled “Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort,” cited to by the Veteran’s attorney in the November 2020 Third Party Correspondence. If the Veteran’s sleep apnea has been aggravated by any service-connected disability, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the development requested in item 1, obtain a medical opinion from an appropriate medical professional for the Veteran’s acquired psychiatric disorder claim. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. If the medical professional determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical professional should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that any of the Veteran’s diagnosed acquired psychiatric disorders (adjustment disorder with mixed anxiety and depressed mood) are related or attributable to his military service? In addressing this question, the medical professional is asked to consider the Veteran’s three sisters’ statements in May and June 2018. (b.) Is it at least as likely as not (50 percent or greater probability) that any of the Veteran’s diagnosed acquired psychiatric disorders are caused by any service-connected disability? (c.) Is it at least as likely as not (50 percent or greater probability) that any of the Veteran’s diagnosed acquired psychiatric disorders are aggravated (i.e., any increase in the severity beyond its natural progression) by any service-connected disability? If any of the Veteran’s acquired psychiatric disorders have been aggravated by any service-connected disability, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completing the development requested in item 1, obtain a medical opinion from an appropriate medical professional for the Veteran’s oral ulcers claim. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. If the medical professional determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical professional should address the following: Is it at least as likely as not (50 percent or greater probability) that any of the Veteran’s oral ulcers are related or attributable to his military service, to include contaminants in the water supply at Camp Lejeune? The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.