Citation Nr: 21021188 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 13-03 198A DATE: April 12, 2021 ORDER Entitlement to an increased rating in excess of 20 percent disabling for chronic left knee strain with chondromalacia patella, degenerative arthritis, and a tear of the posterior horn of the medial meniscus (left knee disability) is denied. Entitlement to an increased rating in excess of 10 percent disabling for right knee fracture, post traumatic ligament calcification medially, with mild chondromalacia of the patella (right knee disability) is denied. Entitlement to service connection for right eye disability is denied. REMANDED Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disability is already in receipt of the highest possible rating. 2. The Veteran’s right knee disability is manifested by flexion to 70 degrees and extension to zero degrees. 3. The Veteran’s right eye disability did not originate in service, was not manifest within one year of service, and is not otherwise etiologically related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the Veteran’s left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5258. 2. The criteria for a rating in excess of 10 percent for the Veteran’s right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5024, 5260, 5261. 3. The criteria for service connection for a right eye disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1970 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing via videoconference from the RO in December 2013; a hearing transcript is of record. The Board remanded the issues of an increased rating for the right and left knee and for service connection for a right eye disorder in a May 2014 and July 2019 decision. The Board remanded the issues in July 2019 in order to obtain a new examination to determine the current severity of the Veteran’s knee disabilities and to incorporate new evidence added to the file since the last Supplemental Statement of the Case (SSOC). The Board finds that VA properly developed the three issues and they are ready for adjudication. Service Connection 1. Entitlement to service connection for right eye disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A Veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Congenital or developmental defects including refractive error of the eye are not considered diseases or injuries for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. The Veteran alleged that he suffered from a right eye injury while he was playing baseball in Rome, Italy in either 1974 or 1975. He reported that he was told by the nurse that he had torn his retina and was told to wear an eye patch for two weeks. He claims that this injury caused his current eye disability. Here, the evidence of a current eye disorder is not in dispute, as the Veteran has been diagnosed with cataracts, retinoschisis, retinal cysts, vitreous degeneration, presbyopia, and farsighted astigmatism. Accordingly, the first element of service connection is met. Turning to the second element, in-service incurrence of a disease or injury, service treatment records (STRs) are silent for the right eye injury that the Veteran reports. The June 1992 separation examination indicates that the Veteran reported a torn retina while playing baseball in Rome, Italy in 1975. However, upon examination the Veteran’s field of vision was full and his visual acuity was correctable. At exit, it was concluded that the Veteran did not have a current disability in his eyes. Thus, the determining element is whether there is a nexus between the Veteran’s current disability and the alleged in-service occurrence. The Veteran was afforded a VA examination in October 1998 where he was diagnosed with right eye farsighted astigmatism, left eye astigmatism, and presbyopia in both eyes. He reported that he had a superficial corneal abrasion of the right eye in 1975 while playing ball. He reported that he had no further treatment for it and it had cleared without complications. Upon examination the examiner reported that the cornea, lens, and retina are all normal and that there is no evidence of corneal abrasion in either eye. The examiner further opined that the need for glasses and farsighted astigmatism in the right eye is of developmental origin and cannot be related directly or indirectly to any activity or injury in service. He furthered that the condition in both eyes is developmental, permanent, and stable. He was provided another VA examination in August 2012 where he was diagnosed with cataracts with a diagnosis date of 2007, a history of ocular trauma without residual ocular sequelae with a diagnosis date of 1975, a history of asymmetric c/d ratio with vitreous floaters with a diagnosis date of 2008. The Veteran reported that while he was playing softball in 1975, he was struck in the right eye with the ball. He believed he was diagnosed with a scratched retina. He reported that he was seen by a medic and the eye was patched for two weeks. He reported blurred distance and near vision without glasses that progressively worsened since the incident. The examiner opined that the right eye disability was less likely than not incurred in or caused by the claimed right eye injury in 1975 since the Veteran did not have an eye disability which could be attributed to the ocular trauma the Veteran reported. The examiner explained that even though the Veteran reported that his uncorrected distance and near vision in his right eye progressively worsened since the incident, the Veteran’s uncorrected visual acuity is consistent with the hyperopia and astigmatism found on examination. The visual acuity was correctable with lenses to correct his hyperopia and astigmatism. The examiner further opined that it is more likely than not that the Veteran’s hyperopia and astigmatism are not a result of the injury incurred in 1975, but rather that these conditions are congenital and developmental in nature. In the December 2013 Board hearing, the Veteran testified that he was treated at the U.S. Embassy and at a civilian hospital in Rome, Italy when he injured his right eye while playing softball. The Veteran was afforded a VA addendum opinion in December 2014. The examiner reiterated reports by the Veteran from the August 2012 VA examination. The examiner reported that on examination, he found the Veteran to have bilateral cataracts which is a developmental disease which was found to be symmetrical between the left and right eyes ruling out traumatic etiology. The examiner furthered that he did not find the Veteran to have a retinal scar. The examiner further explained that the difference in refractive error upon examination accounts for the Veteran’s reports of significantly worse blurred vision in his right eye without glasses. The examiner further explained that based on examination and review of the evidence, the Veteran’s cataracts are less likely than not subject to or aggravated by superimposed injury during service to result in additional disability. The cataracts were symmetrical between right and left eyes ruling out unilateral trauma as an etiology. The cataracts are, in the examiner’s opinion, more likely than not caused by normal developmental and aging changes. Mild cataracts were seen on examination are not uncommon for people in his age group. The examiner furthered that based on the examination and review of the evidence it is his opinion that the Veteran’s subjective decrease in visual acuity is at least as likely as not subject to superimposed injury during service to result in additional disability. This opinion is primarily based on the diagnosis in the STRs of decreased VA OD secondary to trauma in 1978, based on the multiple documentations of vision problems with the left eye, and based on the lack of visual acuity measurement prior to the injury demonstrating that visual acuity was reduced prior to the trauma. Another VA addendum opinion was submitted in July 2015 due to confusion from the December 2014 opinion. The examiner was asked to clarify whether the examiner felt that the decreased visual acuity was due to defect or disease, caused or aggravated by the in-service alleged injury by a natural progression since there was a “lack of visual acuity measurement prior to the injury.” The examiner clarified that it is his opinion that the Veteran has compound hyperopic astigmatism which is causing his decreased uncorrected visual acuity. He furthered that this condition is a developmental condition having nothing to do with trauma. He explained that the condition could not have been caused by, aggravated by, or have anything to do with trauma since it is a developmental refractive error. This refractive error can be corrected with glasses. The examiner was also asked to clarify how the cataracts hold no impact in the visual acuity disturbance. The examiner explained that the Veteran’s vision was correctable to 20/20 and his early cataracts were too mild to have an effect on his visual acuity, which is common. The examiner furthered that generally, the impact of the cataracts is measured by effect on corrected visual acuity not on uncorrected visual acuity. And lastly, the examiner was asked to explain how a scratched retina could resolve based on the Veteran’s history of such and no evidence by current examination as to any residuals from this. The examiner explained that the Veteran reported a history of a scratched retina during the examination. The examiner reported that he found no evidence of a diagnosis of a scratched retina in the STRs. The examiner thinks that the Veteran could have misunderstood what the doctors told him at that time and that based on the history of the trauma, it is more likely that he had scratched his cornea. The examiner explained that a scratch on the cornea would have healed without consequence or residuals in the vast majority of cases, but a retinal scar typically would not resolve. The examiner did not see a retina or corneal scar or any residuals of either of these injuries. Private treatment records from February 2017 report that the Veteran was diagnosed with retinoschisis and retinal cysts in the right eye. He also had infratemporal retinoschisis without inner retinal break on scleral depression. The examiner opined that this may have developed secondary to the eye injury in 1974. In another February 2017 record, the Veteran complained of “strings” in his right eye starting about 20 years ago. The Veteran reported having a history of a right eye injury where he was hit with a softball in 1974. The Veteran continued to have a laser eye surgery from the same private provider. In another private treatment record from October 2019, the Veteran reported no history of trauma or ocular injuries in the past. In a January 2020 statement, the Veteran reported that he sustained a right eye injury while he was stationed as a marine security guard from playing organized athletics. He explained that he does not have proof of the eye injury except for his distorted vision since the injury and that he has been prescribed and issued numerous prescription glasses. He explained that the injury was later diagnosed as a retina tear and had laser surgery performed to fix it. As an initial point, the Board notes that VA examiners classified the Veteran’s presbyopia and astigmatism as congenital defects that existed prior to service, and the Veteran is not competent to assert otherwise. Applicable regulations direct that congenital and developmental defects are not “diseases or injuries in the meaning of applicable legislation” and, thus, do not constitute disability for VA compensation purposes. C.F.R. §§ 3.303(c), 4.9. Given the congenital nature of presbyopia and astigmatism, the presumption of soundness does not apply and is automatically rebutted. Moreover, the competent evidence of record does not indicate that these conditions were aggravated during service by superimposed disease or injury. See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993); see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). To the extent the Veteran reports that a right eye injury occurred during his time in service, the Board finds that while the Veteran is credible, his accounts do not coincide with the medical records at that time. There is no record of a retina tear in either 1974 or 1975. Moreover, there is no evidence that the right eye injury persisted and became chronic. While the Veteran reported having torn his retina in his exit examination in 1992, the examiner found that the Veteran’s field of vision was full and that his visual acuity was correctable. At exit, it was concluded that the Veteran did not have a current disability in his eyes. Thus, while the Veteran’s report of an injury superimposed upon his congenital eye defects during service are credible, they lack probative weight due to the contemporaneous medical records at hand. Moreover, the VA examiner from the December 2014 and July 2015 opinions explained that the Veteran has compound hyperopic astigmatism which is causing his decreased uncorrected visual acuity and that this is a developmental condition having nothing to do with trauma. He further explained that a scratched retina would most likely show some sort of scaring, but upon examination there was no retina scar in the Veteran’s right eye. The examiner believed the Veteran was mistaken with his diagnosis and that he probably had a tear in his cornea, which is something that resolves quickly and does not leave a scar. While the February 2017 private examiner claimed that the right eye disorder could have been caused by the injury in 1974 there was no further explanation determining why the examiner thought that. It seemed as if the examiner relied on the Veteran’s statements that he had a right eye injury during service and based off of that the examiner thought it was possible that the Veteran’s current eye disorder could have been caused by the injury. The Board finds that this opinion has little probative weight since it seems as if it is entirely based off of the Veteran’s lay statements and there is no thorough examination of the Veteran’s STRs to determine whether or not the opinion made sense. The Board finds that the VA opinions have great probative weight since it has been reported that the examiners conducted a thorough review of the Veteran’s STRs, his post-treatment records, and conducted a examination, including listening to the Veteran’s lay statements. The examiners opined based off of the totality of the evidence provided. Thus, to the extent that the Veteran has been diagnosed with congenital eye defects, service connection is not warranted for these disorders. Additionally, there is no evidence that an injury superimposed or aggravated the congenital eye defect during service. Moreover, there is no evidence that the Veteran had any other eye defects during service other than the congenital defects as the VA examiners have reiterated. While the Veteran is diagnosed currently with cataracts, there is no evidence that the Veteran had cataracts in service. A VA examiner even opined that cataracts are too mild to have an effect on visual acuity and that they are likely age-related, nothing that they were diagnosed decades after service. To the extent that the Veteran asserts that his eye disorder is the result of his active duty service, the Board finds that he is not competent to do so, as the determination as to the etiology of an eye disorder is a complex medical question that is beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the claim of service connection for an eye disorder. As such, the benefit of the doubt doctrine is not for application, and the claim for entitlement to service connection must be denied. See 38 U.S.C. § 5107(b). Increased Rating 2. Entitlement to an increased rating in excess of 20 percent disabling for left knee disability is denied. 3. Entitlement to an increased rating in excess of 10 percent disabling for right knee disability is denied. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from disease and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of pain, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59. However, even when the factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitation, and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of the examination. 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263 set forth the relevant provisions for disabilities of the knee. The Board notes that the Veteran has not had a total knee replacement; therefore, the provisions of Diagnostic Code 5055 do not apply and will not be addressed. The Rating Schedule provides that the normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5256 governs ankylosis of the knee and provides a 30 percent rating for knee ankylosis in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is provided for knee ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is provided for knee ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is provided for knee ankylosis that is extremely unfavorable, in flexion at any angle of 45 degrees or more. See 38 C.F.R. § 4.71a. Diagnostic Code 5257 governs other impairment of the knee, providing respective ratings of 10, 20, and 30 percent for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. Id. Diagnostic Code 5258 provides for a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Id. Diagnostic Code 5259 provides a maximum 10 percent rating for removal of semilunar cartilage that is symptomatic. Id. Diagnostic Code 5260, which governs limitation of leg flexion, provides a 0 percent rating for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and a maximum of 30 percent for flexion limited to 15 degrees. Id. Diagnostic Code 5261, which governs limitation of leg extension, provides a 0 percent rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for extension limited to 45 degrees. Id. Diagnostic Code 5262 provides that impairment of the tibia and fibula characterized by malunion with slight knee or ankle disability warrants a 10 percent evaluation, malunion, with moderate knee or ankle disability warrants a 20 percent evaluation, and malunion with marked knee or ankle disability warranted a 30 percent rating. Impairment of the tibia and fibula manifested by a nonunion with loose motion, requiring a brace, warrants a maximum 40 percent rating. Id. Diagnostic Code 5263 provides a maximum 10 percent rating for genu recurvatum that is acquired and traumatic with weakness and insecurity in weight-bearing objectively demonstrated. Id. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R.§ 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 Note 1. In addition, VA regulations provide that “pyramiding,” or evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14. Limitation of motion of the knee and instability of the knee are not duplicative overlapping conditions. A claimant who has both arthritis and instability of the knee may be rated separately under Diagnostic Code 5003 and 5257. VAOPGCPREC 23-97 (July 1997). Limitation of motion for flexion and limitation of motion for extension may be rated separately under Diagnostic Codes 5260 and 5261. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Separate ratings must be based on additional disability. The Veteran’s current disabilities are currently rated under Diagnostic Codes 5024, 5258, 5260, and 5261. While portions of the rating schedule address the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. The Veteran was granted service connection for the left knee with a 10 percent disability rating effective February 4, 2004 and 20 percent effective October 20, 2006. The Veteran was granted service connection with a noncompensable disability rating effective September 13, 1992. It was later increased to 10 percent effective September 8, 2004. The Veteran requested an increased rating since then with the last rating decision continuing the ratings in August 2009. The Veteran then submitted a claim for an increased rating for both knees on March 4, 2011, which is the beginning of the appeal period for these two issues. Evidence relevant to the severity of the Veteran’s service-connected knee disabilities include VA treatment records describing the pain and symptoms that the Veteran experiences due to his knee disabilities. These treatment records do not provide range of motion (ROM) measurements. The Veteran was afforded a VA examination in April 2011 where he reported that he has increased pain, weakness, and stiffness of both legs since the last examination. The Veteran complained of constant pain, weakness, and feelings of giving way bilaterally. He reported that the left knee symptoms were worse than the right knee symptoms and that he occasionally experienced bilateral swelling. The Veteran furthered that flare-ups do occur, but that he self-treats them. The examiner noted that there were no constitutional symptoms of inflammatory arthritis and that the Veteran does not require assistance for activities of daily living. The Veteran reported that he can no longer climb a flight of stairs without stopping and that he avoids any uneven terrain. He furthered that he is limited in his ability to squat, kneel, or crawl. He also reported that he can no longer run, jump, play contact physical sports, thus he has no physical recreational activities. The examiner reported that the Veteran works full-time at a casino resort in security. He has limitations in walking, lifting, and carrying while on the job. The Veteran reported that he can stand for a maximum of 15 minutes, can only walk with his cane between 200 feet to less than a quarter of a mile, and can only walk 100 to 200 feet without his cane. Upon examination, the examiner noted that the Veteran walked with a noticeable limp, that he could raise up on his heels and toes but developed pain discomfort in both knees, could only complete half a squat, and complained of bilateral knee pain with feelings of weakness. The examiner furthered that crepitus could be heard and felt during the examination, that tenderness was present along the medial joint margins of both knees, and that he had increasing pain and discomfort when there is pressure over the patellar region and with repetitive movement. The examiner reported the range of motion (ROM) limitations with flexion limited to 130 degrees for the right knee and 125 degrees for the left knee. The Veteran had full extension with both knees. The examiner further reported that repetitive movement of either knee caused no additional loss of ROM following repetitive usage. The examiner noted that there was no soft tissue swelling or effusion o the knees, but that guarding did develop during the examination. The examiner furthered that the Veteran did not have ankylosis of either knee, no atrophy of the major muscle groups, nor were there constitutional signs of inflammatory arthritis. The examiner explained that repetitive movement caused no additional loss of joint function, but there was mild pain and discomfort with it. The Veteran was diagnosed with chronic strain of the left knee with chondromalacia, degenerative arthritis, and a tear of posterior horn of medial meniscus and with an old fracture off the right knee with posttraumatic ligament calcification medially, with mild chondromalacia of the patella. The Veteran was afforded another VA examination in August 2012 where the Veteran reported he has had worsening pain with chondromalacia patella. He reported that he is not allowed to use a cane as a security guard at the casino he has been working at for the past 45 years. He reported that flare-ups have a mild impact on climbing stairs. Initial ROM measurements reflect bilateral knee flexion to be 140 degrees or greater with painful motion beginning at 120 degrees for the right knee and at 90 degrees for the left knee. There was no limitation of extension for either knee. The Veteran was able to perform repetitive-use testing with three repetitions with no change in ROM for either flexion or extension. The examiner reported that the Veteran had less movement than normal and pain on movement with repetitive use testing for both knees. The Veteran had normal muscle strength and no instability. There was no evidence or history of recurrent patella subluxation or dislocation in either knee, nor had the Veteran ever had “shin splints” stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran had a history of a meniscal tear in his left knee. The Veteran occasionally used a cane. The examiner opined that the Veteran’s knee disabilities did not impact his ability to work. In the December 2013 Board hearing, the Veteran reported that he received weekly VA treatment, including physical therapy and that he believed that his bilateral knee impairment worsened since the last VA examination. The Veteran reported that he could no longer use the stairs well and that he believed that flare-ups were not accounted for in the last VA examination. The Veteran was then afforded a VA examination in June 2014 where he was diagnosed with bilateral knee arthralgia, bilateral chondromalacia patella, and bilateral chronic knee strain. He reported that he was currently working at a casino as a security guard doing mostly sitting assignments. The examiner noted that the Veteran did not report that flare-ups impacted the function of his knees. Initial ROM measurements indicate that flexion for the both knees end at 140 degrees or greater even with painful motion. There was no limitation of extension for either knee. The examiner reported that the Veteran does not use any assistive devices. According to imaging studies, there was no evidence of patellar subluxation, but there was evidence of arthritis in both knees. The examiner reported that the Veteran’s knee disability did impact his ability to work. The examiner noted that the Veteran is working full-time as a security guard at a casino without any problems and has the ability to sit and stand at will. His disability limits his walking and he cannot carry anything over 30 to 40 pounds. The examiner further reported that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. The examiner opined that after a review of the previous VA examination, there was no finding of an increase in symptomatology for the Veteran. The examiner explained that the Veteran has full ROM in both knees, he continues to work full-time as a security guard with restrictions of sitting and standing for eight hours, and he does not use a cane or assistance to walk. The Veteran was then afforded another VA examination in January 2020 where he was diagnosed with left knee strain, left knee meniscal tear, bilateral knee joint osteoarthritis, bilateral chondromalacia, right ligament calcification, and right knee fracture. The Veteran reported experiencing progressive escalation of symptoms and residuals of his knee disabilities. He reported constant bilateral knee pain, stiffness, occasionally giving away and catches. The Veteran stated he experienced a waxing and waning of symptoms precipitated by repetitive use, prolonged weightbearing activities, and environmental weather changes. The examiner noted that the Veteran did not report any flare-ups of either knees. Initial ROM for both knees reflected flexion limited to 100 degrees and no limitation of extension. For both knees with active ROM and non-weightbearing there was no limitation of extension and flexion limited to 100 degrees. Passive ROM with non-weightbearing reflected no limitation of extension and flexion limited to 100 degrees. Active ROM with weightbearing reflected no limitation of extension and flexion limited to 70 degrees. The examiner reported that the ROM itself contributed to functional loss. Pain was noted with flexion and extension and there was evidence of pain with weight bearing. There was also slight to moderate diffuse tenderness in the medial joint and peripatellar region and there was objective evidence of crepitus. For both knees, the Veteran was able to perform repetitive use testing with at least three repetitions and no additional functional loss or ROM. The Veteran was not examined immediately after repetitive use over time, but the examiner opined that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time for both knees. The examiner reported that pain, fatigue, and weakness significantly limited the Veteran’s functional ability with repeated use over a period of time. The examiner noted that after examination of the Veteran, listening to the Veteran’s complete history and current subjective complaints, and combined with a review of the available records, there was no basis to offer additional losses of function or motion when it came to repetitive use. Disturbance of locomotion and interference with standing were additional factors contributing to the knee disabilities. For both knees, muscle strength testing reflected active movement against some resistance which was a reduction in muscle strength. The Veteran was found to not have muscle atrophy nor ankylosis in either knees. There was no history of recurrent subluxation and lateral instability, but there was a history of recurrent effusion with occasional swelling. There was no joint instability for either knees. The Veteran has not had recurrent patellar dislocation, “shin splints”, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The Veteran did have a meniscus (semilunar cartilage) disability with a meniscal tear and frequent episodes of joint “locking” and pain in the left knee. The Veteran reported regularly using a brace, walker, and electric scooter and occasionally using a cane. The examiner found that the Veteran’s knee disabilities impacted his ability to perform occupational tasks like lifting and carrying only up to 20 pounds, can only stand for three minutes, can walk 10 feet without the use of assistive devices, can walking between 200 feet to one-eight of a mile with the use of assistive devices, has to avoid uneven terrain, cannot hike or camp, cannot run or jump, has limited repetitive use with stooping, squatting, pulling, pushing, sweeping, mopping, digging, gardening, kneeling, crawling, or bike riding. He cannot climb stairs or ladders. The examiner further reported that there was evidence of pain on passive ROM test and with non-weight bearing. Upon review of the above evidence, the Board finds, first, that the record does not contain any evidence ankylosis; therefore, Diagnostic Code 5256 does not apply. There is also no evidence of tibia and fibula impairment, genu recurvatum, or recurrent subluxation or lateral instability at any point during the appeal period, and therefore Diagnostic Codes 5257, 5262, and 5263 do not apply. Regarding the Veteran’s right knee disability, VA granted a 10 percent disability rating due to painful motion of the knee. The Veteran would need flexion limited to 30 degrees and extension limited to 15 degrees for a higher rating of 20 percent. Throughout the appeal period the Veteran has had noncompensable limitations of extension and flexion with no limitation of extension and flexion limited at the most to 70 degrees. As such, a preponderance of the evidence is against a finding that the Veteran is entitled to a higher 20 percent rating under Diagnostic Code 5260 or 5261. Additionally, there is no evidence of a semilunar cartilage disability in the right knee. The evidence does not reflect that the Veteran experiences frequent episodes of “locking,” pain, and effusion in the right knee nor has the Veteran ever claimed to experience these symptoms. As such, a preponderance of the evidence is against a finding that the Veteran is entitled to a higher 20 percent rating under Diagnostic Code 5258 or 5259 for his right knee. Regarding the Veteran’s left knee disability, rated under Diagnostic Code 5258, the Veteran is currently rated at the highest rating possible under this Diagnostic Code. A higher disability rating under this Diagnostic Code is not warranted. Even when the limitation of extension and flexion are considered under Diagnostic Codes 5260 and 5261, the Veteran would not be warranted for a 30 percent disability rating. The Veteran’s flexion is limited at the most to 70 degrees and there is no limitation of extension. These are noncompensable disability ratings under both diagnostic codes. For these reasons, the Veteran is not entitled to a separate or increased disability ratings under both Diagnostic Code 5260 and 5261. In reaching the above decisions, the Board has considered the benefit-of-the-doubt doctrine; however, this doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim. In this case, the preponderance of the evidence is against the Veteran’s claim. Therefore, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to a TDIU In the January 2020 Statement in Support of Claim, the Veteran raised the issue for TDIU. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record indicates that in a June 2014 VA knee examination the examiner indicated that the Veteran worked full-time as a security guard at a casino. A September 2019 VA PTSD examination reported that the Veteran quit working as a security officer at the casino in August 2019. The examiner reported that the Veteran worked at the casino for over 11 years. A January 2020 VA knee examination reported a list of the Veteran’s work-related limitations. Then in a January 2020 statement, the Veteran reported that he is unable to work due to his knee injuries and that he is unable to walk or stand for more than five minutes due to the pain. The Board finds that additional clarification regarding the Veteran’s employment history is needed. It is unclear whether the Veteran has worked since quitting his job at the casino in August 2019 since there was a list provided of the Veteran’s work-related limitations in the January 2020 VA examination. As such, the RO should adjudicate the issue of entitlement to a TDIU. This should be done after offering the Veteran the opportunity to provide information necessary for an informed decision on a TDIU claim. The matters are REMANDED for the following action: 1. Provide the Veteran, through his representative, with a VA Form 21-8940 and request that the Veteran complete and return the form. 2. Thereafter, and after undertaking any necessary development, adjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the matter should be returned to the Board for further action. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.