Citation Nr: 21021345 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 10-33 960 DATE: April 12, 2021 ORDER Entitlement to a 70 percent disability rating for posttraumatic stress disorder (PTSD) from October 1, 2015 through December 12, 2018, is granted. Entitlement to a disability rating in excess of 70 percent for PTSD is denied. Entitlement to a disability rating in excess of 10 percent for a total right knee replacement, formerly rated as a medial meniscus tear of the right knee with degenerative arthritis (right knee disability), prior to August 18, 2014, and in excess of 30 percent thereafter, is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) prior to July 25, 2016, is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s PTSD has manifested in occupational and social impairment with deficiencies in most areas, but not in total social impairment. 2. The Veteran’s right knee disability manifested in, at worse, extension to 5 degrees and flexion to 90 degrees; the most probative evidence is against a finding of joint instability. 3. The Veteran’s service-connected disabilities rendered him unable to secure and maintain substantially gainful employment prior to July 25, 2016. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent disability rating for PTSD from October 1, 2015 through December 12, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a disability rating in excess of 70 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a disability rating in excess of 10 percent for a right knee disability prior to August 18, 2014, and in excess of 30 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5257-5261. 4. The criteria for entitlement to a TDIU prior to July 25, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2004 to February 2005, to include service in Iraq and Kuwait, and on active duty for training from May 1982 to October 1982. He was awarded the Combat Action Badge, among other decorations. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2009 and November 2015 rating decisions by a Department of Veterans Affairs (VA) regional office. In July 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. The Board remanded these claims for further development in October 2017. The Board notes that the Veteran is in receipt of a temporary total evaluation for his right knee disability from August 18, 2014, through September 30, 2015, and from June 19, 2018, through September 30, 2018. Similarly, the Veteran has been awarded a total disability rating for his PTSD from December 13, 2018. Accordingly, consideration of higher ratings for these periods for these disabilities is moot. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran’s disabilities are not and cannot be adequately rated under the Rating Schedule. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Entitlement to a disability rating in excess of 70 percent for PTSD prior to October 1, 2015, and in excess of 50 percent from October 1, 2015, through December 13, 2018. This issue is on appeal from an October 13, 2012 claim for increase. Preliminarily, the Board notes that the October 2017 remand order directed the agency of original jurisdiction to obtain a new VA examination to evaluate the severity of the Veteran’s PTSD. The record does not reflect that an examination was obtained. However, the Veteran did submit a very thorough private examination report, including a completed VA Disability Benefits Questionnaire, in November 2018, which adequately evaluated the Veteran’s current level of disability. Furthermore, the Veteran has been awarded a total rating from December 13, 2018, and the Board assigns an increased rating for PTSD as well as a TDIU. Accordingly, the Board finds that there has been substantial compliance with the October 2017 remand directive. As remand of the claim would only serve to delay the Veteran’s appeal and would not result in any additional financial benefit to him, the Board will proceed with adjudication of the claim. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran’s PTSD is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Veteran underwent VA examination in connection with his claim in April 2013. He reported that he had been married for 17 years, but that his relationship with his wife was a “little shabby” now. He stated that he had “so-so” relationships with his kids, and that he did not associate with people outside of his family. He denied experiencing hallucinations, delusions, suicidal ideation, or homicidal ideation. The examiner noted that the Veteran experienced PTSD symptoms including recurrent and distressing recollections and dreams of his traumatic event, acting or feeling as if the traumatic event was recurring, and intense psychological distress and physiological reactivity at exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event. Furthermore, the Veteran made efforts to avoid thoughts, feelings, or conversations associated with his trauma, as demonstrated an inability to recall important aspects of his trauma. The Veteran demonstrated a markedly diminished interest or participation in significant activities as well as feelings of detachment or estrangement from others. The examiner also noted that the Veteran suffered from anxiety, chronic sleep impairment including difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, an exaggerated startle response, and a sense of a foreshortened future. The Veteran next underwent VA examination in October 2015. He reported that he enjoyed attending church and “tinkering” on his vehicles, but that he otherwise had a strong aversion to crowds. He suffered from nightmares four times per week, panic attacks, verbal outbursts of anger, and social isolation. He reported experiencing suicidal ideation without a plan or intent. The examiner noted symptoms including depressed mood, anxiety, panic attacks occurring weekly or less often, sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran underwent an independent psychological evaluation by Dr. J.L. in November 2018. Dr. J.L. noted that the Veteran’s mood was depressed, but that he denied suicidal or homicidal ideation and psychotic symptoms. The Veteran admitted suffering from feelings of disappointment, confusion, anger, fear, and depression. He reported that he tended to avoid other people, loud or sudden noises, and social gatherings. In that regard, he stated that he could only tolerate being around others for a few minutes at a time. He was able to do a few household chores but indicated that he did not care for his young children or pets and that he was somewhat limited in his ability to complete activities of daily living. The examiner opined that the Veteran’s concentration and memory were impaired due to a lack of restorative sleep caused by PTSD, and that depressive symptoms made it impossible for him to sustain sufficient energy and motivation to carry out work assignments. Treatment records and lay statements throughout the period on appeal reflect symptoms consistent with those noted on examinations. For example, in April 2015 the Veteran reported that he was easily irritated and tended to isolate himself. In July 2015, he reported that his mood was increasingly depressed and that he suffered from poor sleep interrupted by nightmares. He also reported transient suicidal ideation. In October 2013, the Veteran’s wife reported that he often talked to himself, asked the same questions more than once, and forgot things easily. She stated that he had panic attacks in public, and that he did not care about his own appearance. The Veteran submitted statements from several family members and friends in November 2015. They consistently reported that he socialized very infrequently and kept to himself. Y.A. indicated that the Veteran seemed very unclear and confused since his deployment, and that he experienced hallucinations. The Veteran’s nephew, J.S., reported that the Veteran had difficulty functioning and suffered from mood swings. During the July 2016 hearing, the Veteran reported occasionally seeing and hearing things that were not there. VA treatment records, VA examinations, the private evaluation, and lay statements from the Veteran and others show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating (suicidal ideation, panic, impaired impulse control, neglect of personal appearance or hygiene, difficulty adapting to stressful circumstances), and symptoms associated with a 100 percent rating (hallucinations). He also had symptoms that are not listed with a specific rating, such as poor appetite, nightmares, and hypervigilance. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating throughout the period on appeal. In that regard, the Veteran’s PTSD was largely characterized by his desire to keep to himself and avoid people outside of his family. His wife reported that he neglected his own personal appearance and hygiene if she did not remind him. He suffered from panic attacks and irritability, as well as severe nightmares which disrupted his sleep and, in the opinion of Dr. J.L., prevented him from obtaining restful sleep. Upon review, the Board finds that the Veteran’s symptoms most nearly approximate occupational and social impairment with deficiencies in most areas, as contemplated by the criteria for a 70 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the October 2015 VA examination. While the Veteran did experience symptoms contemplated by a 100 percent rating—specifically occasional hallucinations—the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Veteran is granted a TDIU due to service-connected disability herein, he was not totally socially impaired. While the record reflects that the Veteran did not enjoy socializing or being in public, it also suggests that the Veteran had a largely successful marriage and relationships with his children. At times he also attended church. Accordingly, the Board is unable to find that the Veteran was totally socially impaired at any time prior to December 13, 2018. Entitlement to a 70 percent rating is warranted throughout the period on appeal and, to that extent, the claim is granted. 2. Entitlement to a disability rating in excess of 10 percent for right knee disability prior to August 18, 2014, and in excess of 30 percent thereafter. This appeal stems from a claim dated in October 2008. Prior to his August 18, 2014 total knee replacement, the Veteran’s right knee disability is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, for limitation of flexion. After that date, with the exception of the periods during which a total rating is in effect, the disability is rated as 30 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, for knee replacement. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), instability and recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can be assigned when a knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of the knee. As such, those diagnostic codes are not for application. 38 C.F.R. § 4.71a, Diagnostic Code 5055, is used to evaluate disability following prosthetic replacement of the knee joint. A total evaluation is assigned for a period of time following implantation of the prosthesis, with a minimum 30 percent rating assigned thereafter. Chronic residuals consisting of severe painful motion or weakness in the affected extremity are to be rated as 60 percent disabling, with intermediate degrees of residual weakness, pain, or limitation of motion to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. Ratings can be assigned for knee instability or subluxation under Diagnostic Code 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, “severe” represented the highest or most extreme level of disability. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned 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 or bracing for ambulation. Regarding patellar instability, 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 warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id., Note (2). The Veteran first underwent VA examination in November 2008. He complained of stiffness, tenderness in the thigh, and throbbing pain daily. He reported flare-ups consisting of increased pain occurring once per week and lasting until he could rest his knee. His pain was aggravated by being up and about a lot and was alleviated by the using of a heating pad or soaking it in hot water. The Veteran’s gait was noted to be mildly antalgic, and he presented using a cane and knee brace. The examiner noted no atrophy, contractures, or hypertrophy. Strength testing to gravity and resistance was within normal limits for the Veteran’s age and bilaterally equal. Range of motion testing revealed extension to 0 degrees and flexion to 90 degrees, and range of motion after three repetitions was not limited by difficulty, fatigue, incoordination, pain, or weakness. No knee instability was appreciated. The examiner also found no edema or effusion. The Veteran underwent a VA general medical examination in October 2010. He reported difficulty climbing stairs due to his right knee and hip, as well as difficulty with prolonged standing, sitting, and walking. He also stated that he had pain, stiffness, weakness, and occasional swelling with too much activity. He reported giving way and flare-ups with increased pain and swelling. He had functional limitations with squatting and lifting heavy objects. Range of motion was from 0 to 120 degrees and was limited by pain. Stability testing revealed no laxity. The Veteran next underwent VA examination in January 2015. However, because he had a total knee replacement in August 2014, he was still in recovery and unable to complete range of motion or joint stability testing. Accordingly, the Veteran again underwent VA examination in December 2020. He did not report flare-ups. Range of motion was from 0 to 110 degrees, and the examiner opined that range of motion itself did not contribute to functional loss. There was no additional loss of function or range of motion after three repetitions, and the examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examiner noted that it was not medically feasible to test the Veteran’s passive range of motion without risk of injury or perceived injuries. Upon examination, there was no reduction in strength, ankylosis, subluxation, or instability. The examiner opined that, following the Veteran’s total knee replacement, his right knee disability manifested in intermediate degrees of residual weakness, pain, or limitation of motion, and would not impact his ability to perform any type of occupational task. Treatment records throughout the period on appeal reflect findings consistent with those noted on examination, with extension to, at worst, 5 degrees, and flexion to, at worst, 90 degrees, as well as frequent complaints of severe and persistent knee pain, even following the Veteran’s knee replacement. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. When the Veteran reported flare-ups in November 2008, he stated that they consisted of increased pain. At other VA examinations he denied flare-ups. While given the opportunity to describe functional limitation related to the disability, the Veteran’s statements do not show the requisite limitation of motion necessary for a higher or separate rating at any point during the period on appeal. Notably, the examiner in December 2020 opined that functional ability would not be significantly limited by pain, weakness, fatigability, or incoordination with repeated use over time. Thus, the Board finds that the range of motion findings on examination adequately depict the estimated range of motion during a flare-up or after repetitive use over time. First, the Board notes that the Veteran was diagnosed with a meniscal tear prior to his knee replacement in August 2014. However, VA examiners have not suggested that the Veteran has experienced frequent episodes of joint locking, pain, and effusion related to the tear nor have such symptoms otherwise been noted in the treatment records or asserted by the Veteran. The Veteran’s pain is considered in the currently assigned ratings. Accordingly, the Board finds that the assignment of a separate rating pursuant to Diagnostic Code 5258 or 5259 is not warranted. 38 C.F.R. § 4.71a. With regard to limitation of motion for the period prior to August 18, 2014, treatment records do not show greater limitation of motion than the examination findings. Given the above, the highest rating that could be assigned based upon limitation of motion is the currently-assigned 10 percent rating for painful motion. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5260, 5261. Accordingly, a higher or separate rating is not warranted based on limitation of motion prior to August 18, 2014. From August 18, 2014, the Veteran is currently in recent of the 30 percent minimum rating for residuals of a knee replacement pursuant to Diagnostic Code 5055. While the Veteran has complained of pain, severe painful motion is not shown. The December 2020 examiner noted that while pain was present, it did not significantly limit functional ability with repeated use over time. While the Veteran has reported severe pain, it does not appear that it has significantly limited range of motion, as extension and flexion have not been limited to a compensable degree at any time during the period on appeal. Put another way, the Veteran simply asserting he has severe pain is outweighed by the findings of the medical professionals showing impairment from pain at a level less than would be expected if severe painful motion was present. The evidence is also against a finding of severe weakness following the knee replacement. At the December 2020 examination, right knee strength was normal. These findings are strong evidence against a finding of severe weakness. The VA examiner in December 2020 specifically opined that post-surgery the Veteran only had intermediate degrees of residual weakness, pain or limitation of motion. There is no competent evidence in significant conflict with the examiner’s findings. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability approximates the level of severity contemplated by a 60 percent rating for severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Regarding instability and subluxation of the knee, during the October 2010 VA examination and the July 2016 hearing the Veteran stated that he felt his knee giving way. In September 2015, a private clinician, Dr. J.M. noted that he was confused as to the source of the Veteran’s continued, severe pain, but that it was possibly from instability so he treated it with a brace. Dr. J.M. also noted increased laxity. A clinician from the same practice, Dr. Z.X, noted that the knee was stable in April 2017. Notably, there are specific medical tests that are designed to reveal instability of the joints. These tests were administered by medical professionals in this case in November 2008 and December 2020, and the testing revealed no instability. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran’s lay statements. While the Veteran may experience a feeling that his knee may give way or is unstable, if subluxation or instability were present, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed. See 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5257 (2020). The examiners were well aware of the Veteran’s reports of giving way but still found that, overall, there was no history of recurrent subluxation or instability. The medical opinions were fully informed and made based on diagnostic testing results and consideration of the Veteran’s statements. While Dr. J.M. noted increased laxity, the evidence does not suggest that he conducted objective testing or that his findings were definitive, as noted above. Accordingly, the findings of the VA examiners of no history of instability or subluxation is the most probative evidence on this point. Regarding the version of Diagnostic Code 5257 in effect prior to February 7, 2021, a higher or separate rating is not warranted as the evidence is against a finding of the presence of slight lateral instability or recurrent subluxation. Regarding the version of Diagnostic Code 5257 in effect since February 7, 2021, a rating for recurrent subluxation or instability is not warranted because the evidence is against a finding of persistent instability. Notably, diagnostic testing for stability did not reveal any instability, which is strong evidence against a finding of persistent instability. Put another way, when multiple medical tests for instability fail to detect instability, constant instability is not present. A compensable rating is not warranted for patellar instability either. The evidence does not show surgical repair involving the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon), and, as discussed above, the evidence is against a finding of recurrent instability. Moreover, the record does not contain a diagnosed condition involving the patellofemoral complex; that is, the quadriceps tendon, the patella, or the patellar tendon. The Veteran, as a lay person, is not competent to provide the required diagnosis. 3. Entitlement to a TDIU. The Veteran asserts that his service-connected disabilities prevent him from securing and maintaining substantially gainful employment. The Board notes that, following the Board’s October 2017 remand, entitlement to a TDIU was granted from July 25, 2016, the date the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. However, the Veteran raised the issue of entitlement to a TDIU in conjunction with his increased ratings claims; accordingly, the matter of whether a TDIU is warranted prior to July 25, 2016, remains at issue even though the Veteran has not filed a Notice of Disagreement with the assigned effective date. See Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected PTSD, right knee disability, right hip disability, and tinnitus. 38 C.F.R. § 4.16(a). The Veteran asserts that he is unable to work due to his service-connected PTSD, right knee, and right hip disabilities. Military personnel records reflect the Veteran’s military occupation specialty was that of a multichannel transmission systems operator. The Veteran reported completing high school but no college. He further stated that he last worked in May 2005. The record reflects that the Veteran most recently worked as a technician surveying coal samples, prior to which he worked as a warehouse supervisor for a moving and storage company. The Veteran has reported that he did not return to work following his active duty service and deployment to Southwest Asia. As noted above, when the Veteran has undergone evaluation for his service-connected PTSD, his primary complaint has been difficulty being in public and relating to anyone other than family members. He has endorsed symptoms of panic and impaired impulse control, including severe irritability. Furthermore, examiners have noted severe sleep impairment due to nightmares which prevent the Veteran from getting restorative sleep and affects his memory and concentration. The Veteran has also suffered from transient suicidal ideation and hallucinations. With respect to the Veteran’s right knee disability, the Board notes that the Veteran is already in receipt of a total rating for the time during which he was recuperating from knee surgeries. At other times, the Veteran complained of severe and consistent pain that worsened with activities including prolonged walking and standing. With respect to the Veteran’s right hip disability, the evidence reflects complaints of pain and locking. He reported flare-ups with prolonged riding in a vehicle, as well as functional loss with walking more than 100 feet or sitting for more than 20 minutes. VA examinations reflect reduced range of motion. Taken as a whole, the Veteran’s symptoms suggest he was unable to obtain and maintain employment due to his service-connected disabilities in combination. Given the Veteran’s education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and the Veteran’s treatment providers, the Board finds that the level of impairment caused by his disabilities would preclude employment. In that regard, while the Veteran’s physical disabilities would likely allow him to maintain sedentary employment, the evidence demonstrates that he suffers from impulse control, panic attacks when in public, depression, and fatigue that would prevent him from carrying out that type of work. Dr. J.L. specifically opined that the Veteran’s ability to stay on task and adapt to work settings is markedly impaired. Furthermore, the Veteran’s physical disabilities, in combination with PTSD, would prevent him from carrying out the type of physical labor he has done before, including as a warehouse supervisor. The Board finds that the evidence is in favor of a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities prior to July 25, 2016. Thus, a TDIU is warranted and the claim is granted. When awarding TDIU in February 2021, the RO assigned TDIU effective the date the Veteran submitted a VA Form 21-8940. However, the TDIU claim is tied to the rating claims discussed in this decision and dates back to October 2008. The Board finds that TDIU was warranted prior to the current effective date, and that the RO should assign the new effective date considering the proper date of claim to preserve the Veteran’s one review by the Secretary. See 38 C.F.R. § 7104(a). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.