Citation Nr: 21025635
Decision Date: 04/28/21	Archive Date: 04/28/21

DOCKET NO. 11-31 186
DATE: April 28, 2021

ORDER

Service connection for diabetes is denied.

Service connection for hypertension is denied.

Service connection for a chronic fatigue disability is denied.

Service connection for a respiratory disability, to include shortness of breath, chills, and night sweats, is denied.

An increased rating for a left knee disability from 10 to 20 percent prior to October 31, 2019, based on limited motion of flexion, is granted.

An increased rating for a left knee disability in excess of 30 percent since October 31, 2019, based on limited motion of flexion, is denied.

A separate rating for a left knee disability of 10 percent based on limitation of extension, since the November 25, 2008, claim for increase is granted.

An increased rating for a left knee disability based on instability in excess of 10 percent from March 18, 2011, and 20 percent since October 31, 2019, is denied.

The discontinuance of a separate right knee rating of 10 percent based on painful or limited motion primarily with flexion effective from May 12, 2011, was improper, and restoration of the prior separate 10 percent rating is granted. 

An increased rating for a right knee disability based on limited flexion from 10 to 20 percent prior to May 12, 2011, and from February 21, 2017, to October 30, 2019, is granted.

An increased rating for a right knee disability based on limited flexion in excess of 20 percent effective from May 12, 2011, through February 20, 2017, and in excess of 30 percent effective since October 31, 2019, is denied.

A separate rating for a right knee disability based on limitation of extension of 20 percent prior to May 12, 2011, and since February 21, 2017, is granted.

An increased rating for a right knee disability based on instability in excess of 10 percent from March 18, 2011, and 20 percent since October 31, 2019, is denied.

An increased rating for a back disability in excess of 20 percent prior to October 31, 2019, and 40 percent thereafter is denied.

An increased rating for right lower extremity sciatic radiculopathy in excess of 20 percent prior to October 31, 2019, and 40 percent thereafter is denied.

An increased rating for left lower extremity sciatic radiculopathy in excess of 20 percent prior to October 31, 2019, and 40 percent thereafter is denied.

A total disability rating based on individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran’s diabetes and hypertension did not have their onset during service or to a compensable degree within one year after service; the current disabilities are not otherwise related to an in-service injury or disease; and the current disabilities were not caused or aggravated by a service-connected disability. 

2. The Veteran has not had a diagnosis of chronic fatigue syndrome or other disability manifested by chronic fatigue as separate from his service-connected mood disorder at any time during or approximate to the pendency of the claim.

3. The Veteran has not had a respiratory disorder or another disability manifested by shortness of breath, chills, and night sweats at any time during or approximate to the pendency of the claim.

4. Prior to October 31, 2019, the Veteran’s left knee disability manifested by pain and other contributing factors with flexion limited to 30 degrees at times, but not 15 degrees. 

5. Since October 31, 2019, the Veteran’s left knee disability has manifested by pain and other contributing factors with flexion limited to 15 degrees at times. 

6. Throughout the appeal period, the Veteran’s left knee disability manifested by pain and other contributing factors with extension limited to 10 degrees at times, but not to 15 degrees or more. 

7. The Veteran had left knee sensations of instability and weakness but no lateral instability prior to March 18, 2011, no more than mild lateral instability from March 18, 2011, and no more than moderate instability since October 31, 2019; with no complete ligament tear or patellar instability after surgical repair. 

8. Although the Veteran had a left knee meniscal tear shown in May 2019, he did not have non-overlapping frequent pain, locking, and effusion into the joint.

9. There was not clear and unmistakable error (CUE) in the assignment of a separate 20 percent rating for the right knee based on limited extension, effective May 12, 2011, as there was compensable limitation of flexion and extension.

10. Prior to October 31, 2019, the Veteran’s right knee disability manifested by pain and other contributing factors with flexion limited to 30 degrees at times, but not 15 degrees, (with the exception of a temporary total disability period effective June 8, 2010, to August 30, 2010, based on arthroscopic surgery and convalescence). 

11. Since October 31, 2019, the Veteran’s right knee disability has manifested by pain and other contributing factors with flexion limited to 15 degrees at times. 

12. Throughout the appeal period, the Veteran’s right knee disability manifested by pain and other contributing factors with extension limited to 15 degrees at times, but not to 20 degrees or more. 

13. The Veteran had right knee sensations of instability and weakness but no lateral instability prior to March 18, 2011, no more than mild lateral instability from March 18, 2011, and no more than moderate instability since October 31, 2019; with no complete ligament tear or patellar instability after surgical repair requiring a prescribed brace and a cane or walker.  

14. There was no right knee meniscal tear or dislocation, or non-overlapping frequent pain, locking, and effusion into the joint..

15. Throughout the appeal period, the Veteran’s back disability has not manifested by ankylosis or functional loss more nearly approximating ankylosis; there has been no associated neurologic impairment other than bilateral lower extremity sciatic radiculopathy; and he has IVDS but no eligible incapacitating episodes.

16. Prior to October 31, 2019, the Veteran’s back disability manifested by constant pain despite medications and painful motion with limitation of thoracolumbar spine forward flexion to greater than 30 degrees but not greater than 60 degrees.

17. Since October 31, 2019, the Veteran’s back disability has manifested by constant pain despite medications and painful motion, with forward flexion of the thoracolumbar spine to 30 degrees or less.

18. Prior to October 31, 2019, the Veteran had no more than moderate incomplete paralysis of the sciatic nerve in the bilateral lower extremities. 

19. Since October 31, 2019, the Veteran has had no more than moderately severe incomplete paralysis of the sciatic nerve in the bilateral lower extremities. 

20. Entitlement to a TDIU is moot effective since March 6, 2018; and prior to that date, effective since December 23, 2009, the Veteran had a single disability for this purpose rated 40 percent or more and additional disabilities that combined to a rating of 70 percent or more, but he was not precluded from substantially gainful employment consistent with his history due to service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for service connection for diabetes are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

3. The criteria for service connection for a chronic fatigue disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. The criteria for service connection for a respiratory disorder, to include shortness of breath, chills, and night sweats, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 

5. The criteria for an increased rating for a left knee disability from 10 to 20 percent prior to October 31, 2019, based on limited flexion are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260.

6. The criteria for an increased rating for a left knee disability in excess of 30 percent since October 31, 2019, based on limited flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260.

7. The criteria for a separate rating for a left knee disability based on limitation of extension of 10 percent since the November 25, 2008, claim for increase are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261.

8. The criteria for an increased rating for a left knee disability based on instability in excess of 10 percent from March 18, 2011, and 20 percent since October 31, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257.

9. The discontinuance of the separate right knee rating of 10 percent based on painful or limited motion primarily with flexion, effective from May 12, 2011, was improper, and the criteria for restoration of the separate 10 percent rating are met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260.

10. The criteria for an increased rating for a right knee disability based on limited flexion from 10 to 20 percent prior to October 31, 2019, to include prior to May 12, 2011, and since February 21, 2017, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260.

11. The criteria for an increased rating for the right knee disability based on limited flexion in excess of 30 percent since October 31, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260.

12. The criteria for a separate rating for a right knee disability of 20 percent based on limited extension effective prior to May 12, 2011, and since February 21, 2017, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261.

13. The criteria for an increased rating for a right knee disability based on instability in excess of 10 percent from March 18, 2011, and 20 percent since October 31, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257.

14. The criteria for an increased rating for a back disability in excess of 20 percent prior to October 31, 2019, and 40 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242 & 5243. 

15. The criteria for an increased rating for left lower extremity sciatic radiculopathy in excess of 20 percent prior to October 31, 2019, and 40 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

16. The criteria for an increased rating for right lower extremity sciatic radiculopathy in excess of 20 percent prior to October 31, 2019, and 40 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

17. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had honorable active duty service in the U.S. Navy from December 1982 to March 1987 and in the U.S. Army from April 1991 to September 1994.

This case initially came before the Board of Veterans’ Appeals (Board) on appeal from several rating decisions. The Veteran perfected an appeal for his claims for increased compensation for the bilateral knee disabilities from an October 2011 statement of the case (SOC), and for the other issues from a December 2015 SOC. 

Historically, a May 1996 rating decision granted service connection for a bilateral knee disability, rated 10 percent as one condition, effective since September 14, 1994. A January 2008 rating decision discontinued the single rating for the knees, granted service connection for bilateral osteoarthritis of the knees, and gave separate left and right knee ratings of 10 percent based on painful or limited motion, effective July 25, 2007. In November 2008, the Veteran submitted his current claim for an increased rating. A January 2009 rating decision denied an increase from 10 percent for each knee, but during the appeal period he was granted staged increases based on limitation of motion and a separate rating for instability for both knees. See rating decisions in September 2010, September 2011, December 2016, April 2017, January 2020, and March 2020.

The Veteran was also awarded a temporary total (100 percent) rating for his right knee disability based on surgery and convalescence in 2010, and a subsequent rating of 20 percent was reduced to 10 percent from 2017 to 2019 based on a finding of clear and unmistakable error (CUE). The propriety of the restoration is also before the Board as part of the increased rating appeal, as the Veteran continued to seek a higher rating and asserted that his knee did not improve. The current ratings on appeal are reflected on the first two pages of this decision.

For his back and lower extremity disabilities, historically, a May 1996 rating decision granted service connection for a back disability with sciatica, rated 10 percent disabling. In June 2009, the Veteran submitted his current claim for increase. A November 2009 rating decision denied a higher rating. However, during the course of the appeal, the Veteran was awarded a higher rating for a portion of the appeal period (known as staged ratings) for his back disability based on limitation of motion, as well as separate ratings for associated bilateral lower extremity sciatic nerve impairment. See rating decisions in February 2011, September 2011, December 2015, and January 2020. Because the rating criteria for spinal disabilities direct assignment of a separate rating for associated neurologic impairment, and the Veteran continued to seek a higher rating, the lower extremity nerve ratings are under the Board’s jurisdiction related to the June 2009 claim. The current ratings on appeal are reflected on the first two pages of this decision.

The Veteran testified at a Board hearing in August 2017. In a February 2018 decision, the Board determined that new and material evidence had been received to reopen prior final denials of service connection for diabetes with hypertension, bilateral arm numbness, and a psychiatric disorder. The Board remanded these reopened claims for service connection, along with the other listed service connection and disability rating claims, for additional development. 

Upon remand, rating decisions in July 2019, January 2020, and February 2020 granted service connection for a mood disorder associated with the Veteran’s back disability; and granted service connection for bilateral upper arm radiculopathy (including symptoms in the arms and hands). The Veteran did not appeal to the Board from the assigned disability ratings or effective dates. Therefore, those conditions and issues are not before the Board. Although the Veteran requested an earlier effective date for his psychiatric disorder in an August 2019 VA Form 20-0995 Supplemental Claim, that claim was denied in an August 2019 rating decision, with notice to the Veteran in September 2019, and not appealed. 

As directed in the prior Board remand, identified outstanding VA and private treatment records were obtained, including an MRI of the knees, and the Veteran was provided VA examinations for his claims on appeal. The knee and back VA examinations included all necessary findings to determine the proper ratings pursuant to Correia v. McDonald, 28 Vet. App. 15 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no argument or indication that additional medical evidence, examinations, or opinions are needed, as addressed further below.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 

Diabetes and hypertension are considered chronic diseases that will be presumed related to service if they were noted or diagnosed as chronic during service; or if they manifested to a compensable degree within one year after active duty discharge; or if chronicity or continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3).

Secondary service connection will be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or is aggravated beyond its natural progression, by service-connected disability. 38 C.F.R. § 3.310. Such aggravation need not be permanent. See Ward v. Wilkie, 31 Vet. App. 233 (2019).

In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

1. and 2. Service connection for diabetes; service connection for hypertension

The Veteran primarily contends that his diabetes and hypertension or high blood pressure are related to service. He believes the food he ate and conflicts or stressful situations in service led to these conditions. The Veteran testified that no doctor has told him that his diabetes or hypertension are due to service, as they just treated the current conditions. See August 2017 Board hearing. Previously, the Veteran asserted that his pain from service-connected disabilities led to diabetes and hypertension, or that his conditions are due to environmental hazards or exposures over long periods. This appears to reference his exposure to aircraft exhaust fumes in service. See July 2007 correspondence, January 2016 statement in support. 

The medical evidence establishes current disability diagnoses of diabetes mellitus, type II, and hypertension, both of which are treated with oral medications. 

However, the in-service incurrence and nexus elements are not met, to include based on the chronic disease presumption and secondary service connection.

The Veteran has not asserted that he had symptoms or a diagnosis of diabetes or hypertension during service or within one year after discharge, nor does the evidence suggest such a timing for the onset of his current disabilities. 

Evaluations in service treatment records repeatedly reflect negative (normal) results for sugar or albumin in the urine and blood pressure readings within normal limits, including during Medical Evaluation Board proceedings for separation in 1994. The Veteran also denied having high blood pressure or sugar or albumin in the urine. Within one year after service, during a February 1995 VA general medical examination, the Veteran denied a history of diabetes or hypertension. A November 1999 VA treatment record reflected a previous medical history that did not list hypertension or diabetes, but a family history remarkable for diabetes.

The Veteran has reported being diagnosed with diabetes and hypertension around 2005 or 2007, and private treatment records reflect that he was diagnosed with both conditions in 2006. It appears that hypertension was diagnosed shortly before diabetes. A February 2005 private record noted a previous medical history that did not include diabetes or hypertension, the Veteran’s blood pressure was 142/94, and the assessment specified that he had elevated blood pressure without a diagnosis of hypertension. The provider noted a family history of diabetes mellitus, type II, in the Veteran’s mother and maternal grandfather. An April 2006 record then stated that the Veteran presented for a followup on essential hypertension that was first diagnosed three months ago, and the condition was now controlled with medication. A March 2007 record noted that the Veteran was being seen for hypertension and type II diabetes mellitus, which was non-insulin dependent with no complications, and was taking medications for both conditions. The provider stated that hypertension and diabetes were both first diagnosed one year ago. 

The Veteran continued to be treated for diabetes mellitus, type II, and essential hypertension, including at VA facilities starting in March 2009. An August 2009 VA record noted that outside records reflected that the Veteran was supposed to be on medications for these conditions. A December 2010 record noted that the Veteran had lost weight and was no longer receiving treatment or taking medications for diabetes. An October 2011 record noted that hypertension was well controlled. A November 2011 podiatry record then noted that the Veteran had non-insulin dependent diabetes mellitus (NIDDM) with documented neuropathy. A May 2012 record noted that he was not taking his medications for diabetes. In September 2013, a dietician noted that the Veteran was overweight, advised him as to his diet and noted that it may promote mild weight loss, but stated that overall his diabetes control appeared good. Another September 2013 record noted that a recent a1c check for diabetes was in the excellent range. An October 2015 record stated that the Veteran was not checking his blood sugar for diabetes prior to getting a new glucose monitor. A September 2017 record stated that he had diabetic peripheral neuropathy with poor diabetic control.

As directed in the prior Board remand, the Veteran was afforded a VA examination for his diagnosed diabetes and hypertension to address direct service connection and whether the conditions manifested to a compensable degree within one year after service to be eligible for the chronic disease presumption, to include consideration of any assertions of post-service continuity of symptomatology. 

In a January 2020 report based on an October 31, 2019, examination, a VA examiner noted the Veteran’s report of hypertension beginning about 15 years ago (around 2005) with elevated blood pressure readings, and diabetes beginning in 1997 with increased thirst and fatigue. The notation of diabetes in 1997 may have been a typographical error for 2007 based on the rest of the report; however, 1997 would still be more than one year after the Veteran’s separation from service in September 1994. The examiner opined that the Veteran’s diabetes and hypertension were less likely than not incurred in or caused by service or were present within one year after service, noting that both conditions were first diagnosed several years after service. The examiner noted that hypertension was diagnosed at the earliest in 2005 and diabetes was diagnosed around 2007. 

These opinions and rationale are probative and adequate, as they apply medical expertise to an accurate history for the particular facts of this case, which is generally consistent with the Board’s independent review of lay and medical evidence. As summarized above, the Veteran was diagnosed with hypertension and diabetes in 2006, he has not asserted continuity of symptomatology, and he denied a history of those conditions or symptoms during service and prior to 2006.

Because hypertension and diabetes did not manifest as chronic or to compensable degree within one year after service, and there was no continuity since service, the chronic disease presumption does not apply. See 38 C.F.R. §§ 3.307, 3.309. 

Additionally, the lack of treatment or corroborating medical evidence for many years may be considered as one of several factors in determining whether a disability was incurred during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009); 38 C.F.R. § 3.303.

The Veteran is not competent to provide an opinion as to the cause of his diabetes or hypertension, to include whether they are related to general diet or stress during service, or exposure to environmental hazards such as aircraft fumes during service, or whether they are secondary to his medications or service-connected disabilities. These are a medically complex questions that require knowledge of the interactions between the involved endocrine and cardiovascular bodily systems, as well as the potential effects of medications and environmental hazards consistent with the Veteran’s service, and interpretation of his medical history and required testing, due to the multiple potential causes and his extensive medical history. 

There is no suggestion in the Veteran’s medical records of a link or nexus to service or service-connected disability, and he has not submitted any medical or scientific literature to suggest a possible nexus. As noted above, a VA examiner gave a negative opinion for direct service connection. Although the treatment records reflect that the Veteran’s diabetes was uncontrolled at times, he was not taking his medication or checking his blood sugar. He was also advised as to his diet and weight at times, but his diabetes was noted to be under good control despite being overweight, and he actually lost weight at times. These notations do not raise an indication that there may be a secondary nexus or link to service-connected disability, to include based on obesity as an intermediate step. The Veteran’s broad conclusory statements as to a link to exposure to environmental hazards or secondary service connection are insufficient to trigger the need for a medical opinion in these aspects. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010).  

In summary, the preponderance of the evidence is against service connection for diabetes or hypertension under any reasonably raised theory. There is no reasonable doubt to resolve in the Veteran’s favor, and the appeals are denied.

3. Service connection for a chronic fatigue disability 

The Veteran contends that he has chronic fatigue due to pain medications for his service-connected disabilities, and that he also reported chronic fatigue during his Medical Evaluation Board in service. The Veteran denied treatment for chronic fatigue syndrome (CFS), but testified that his doctors had told him they think his medications are causing his fatigue. See October 2017 Board hearing. 

The Veteran elaborated on his assertions in prior statements for his claim, essentially describing problems sleeping and resulting fatigue or feeling tired. In July 2007, he reported having insomnia or inability to sleep more than 3-4 hours at a time due to pain and medications wearing off. In May 2010, the Veteran stated that he has chronic fatigue due to his knees giving out and falling, pain, and sleep problems due to pain which affects his mood and causes him to fall asleep while driving. In October 2011, he reported having sleep problems due to pain and depression. Similarly, in December 2013, the Veteran asserted that he has lack of sleep as CFS. In January 2016, the Veteran reported receiving inpatient treatment at a VA facility for chronic fatigue due to his mental health disorder and pain.

This claim must be denied due to no disability diagnosed at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 

The Veteran has made competent and credible statements of difficulty sleeping or chronic sleep impairment and resulting fatigue. However, he is not competent to identify whether he has an actual disorder of chronic fatigue syndrome (CFS) or other specific diagnosis manifested by chronic fatigue. This is a medically complex question that requires knowledge of the interactions between the multiple body systems, as well as interpretation of the Veteran’s medical history and any required testing, due to the multiple potential causes and his extensive medical history. 

Service records confirm that the Veteran complained of frequent sleepless nights due to back and knee pain at his Medical Evaluation Board for separation in 1994. 

Post-service treatment records also reflect complaints of “chronic fatigue” or lethargy and insomnia or difficulty sleeping due to the Veteran’s back and knee pain and his mental health disorder. He is service-connected for a mood disorder secondary to his back disability. See, e.g., VA treatment records in March 2009, September 2009, September 2013, March 2014; private record in March 2016. 

VA treatment records in September 2013 noted chronic insomnia due to his mental disorder, and a sleep study or polysomnogram did not show sleep apnea. A prior private sleep study in September 2008 also showed no sleep apnea. In contrast, a November 2013 VA mental health treatment record noted that the Veteran was sleeping well most of the time and thought his medications were helping, his mood was somewhat improved, and he had slept well and was not fatigued.

Concerning medications, a March 2009 VA treatment record noted that the Veteran complained of back pain “all over” and knee pain, and that he may be on excessive narcotics (or pain medications) from his private provider, which may contribute to his frequent falls. A September 2013 record noted that the Veteran had hypersomnia or excessive daytime sleepiness due to multiple sedating psychiatric medications, and his medications were adjusted to address this concern. A September 2015 record noted that the Veteran’s high blood sugar from uncontrolled diabetes could be contributing to his fatigue, and also that his fatigue was most likely related to his medication. A January 2020 VA examination report for hypertension noted a side effect of blood pressure medications can be fatigue.

As directed in the prior remand, the Veteran was afforded a VA examination for his claimed chronic fatigue to address direct and secondary service connection, to include consideration of a link to his medications for service-connected disabilities, and any assertions of post-service continuity of symptomatology. 

In a January 2020 report based on an October 31, 2019, examination, a VA examiner opined that the Veteran does have a current diagnosis of chronic fatigue syndrome (CFS). However, this finding is inconsistent with the other evidence.

Consistent with VA’s definition in 38 C.F.R. § 4.88a, an automated Note in the examination report explains that for VA purposes, the diagnosis of CFS requires: (A) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (B) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (C) six or more of the following: 1. acute onset of the condition, 2. Low-grade fever, 3. non-exudative pharyngitis, 4. palpable or tender cervical or axillary lymph nodes, 5. generalized muscle aches or weakness, 6. fatigue lasting 24 hours or longer after exercise, 7. headaches (of a type, severity or pattern that is different from headaches in the pre-morbid state), 8. migratory joint pains, 9. neuropsychologic symptoms, or 10. sleep disturbance. 

The VA examiner checked that other clinical conditions that may produce similar symptoms had been excluded to the extent possible. The examiner identified findings, signs or symptoms attributable to CFS as debilitating fatigue, low-grade fever, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, headaches, migratory joint pain, neuropsychologic symptoms, and sleep disturbance. The examiner explained that the Veteran has fatigue for more than one day after exercising (but is not really able to exercise because of fatigue), insomnia, pain in all joints at different times of the day, and often has fever and forgetfulness or cognitive issues. 

However, the examiner did not address the significance of the Veteran’s diagnosed service-connected mood disorder, back and knee disabilities, bilateral lower extremity sciatica, and bilateral upper extremity nerve impairment; or his nonservice-connected diabetes, hypertension, and multiple other conditions. This is improper because CFS is a diagnosis of exclusion, as noted in the VA definition, and the other medical evidence clearly attributes to the Veteran’s fatigue and sleep disturbance, joint pain and muscle aches or weakness, and mental health or neuropsychologic symptoms to other clinically diagnosed conditions. This leaves only low-grade fever and headaches as potential symptoms, which is not six or more symptoms as required for CFS. However, another examination or medical opinion is unnecessary because the evidence in the Veteran’s treatment records is sufficient to adjudicate the claim.

In several reports from January 2020 through March 2020, the VA examiner opined that the Veteran’s CFS is less likely than not secondary to his medications for service-connected disabilities because medical literature reflects that CFS cannot be caused or aggravated by medications but, instead, may be due to various causes or risk factors. The examiner disagreed with the statements by medical providers that fatigue is caused by medication, again stating that medicine cannot cause or aggravate CFS. The examiner appeared to equate general “fatigue” with “CFS.” As with the diagnosis, the other medical evidence is sufficient to decide the claim. 

In summary, the Veteran has not had a diagnosis of CFS or other disability manifested by chronic fatigue as separate from his service-connected mood disorder at any time during or approximate to the pendency of the claim. The rating criteria for mental health disorders contemplate chronic sleep impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9421. As the preponderance of the evidence is against service connection for a separate disability, there is no reasonable doubt to resolve in his favor. The appeal is denied.

4. Service connection for a respiratory disability, to include shortness of breath, chills, and night sweats

The Veteran contends that service connection is warranted for a respiratory disorder or shortness of breath because he was treated during service for shortness of breath, although no disability was diagnosed then or currently. The Veteran testified that he still has shortness of breath, which he believes is due to exposure to exhaust fumes in service while working in aviation and being in confined spaces of aircraft running while close together. He stated that his doctors have not given a diagnosis, and they just treat his symptoms. See October 2017 Board hearing. 

The Veteran elaborated on his assertions in prior statements for his claim. In May 2010, he described his shortness of breath as very limited physical endurance due to knee pain. In January 2016, the Veteran described his claimed respiratory condition as chills, shortness or loss of breath, and sweats or night sweats. He stated that he believes his respiratory condition is due to inhaling diesel fuel for extended periods, or a positive tuberculosis (TB) test from 1983 or being a PPD converter (which is a positive skin test for latent TB) with TB exposure in service.

This claim must be denied due to no disability at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 

The Veteran has made competent and credible statements of having shortness of breath, chills, and night sweats at times during the appeal period. However, he is not competent to identify an actual respiratory disorder or other specific diagnosis manifested by such symptoms. This is a medically complex question that requires knowledge of the respiratory system and other potentially involved body systems, as well as interpretation of the Veteran’s medical history and any required testing, due to the multiple potential causes and his extensive medical history. 

Service records confirm that the Veteran served as a Navy aircraft mechanic. He was a PPD converter with a positive skin test for TB with no active symptoms of TB, which was treated with INH from 1986 to 1987. He had normal chest X-rays in November 1986, October 1987, and April 1991. At his Medical Evaluation Board (MEB) for separation in 1994, the Veteran reported having shortness of breath most of the time and chest pain on a recurring basis, and that he didn’t smoke. A March 1994 for his MEB showed no active disease. An April 1994 record noted chronic intermittent chest pains for approximately one month, little relief with Tagamet, that he was a nonsmoker, and that he had intermittent atypical chest pain. The Veteran described mild throbbing chest pain for days to one week at a time, no shortness of breath or cough or pleuritic pain. The impression was intermittent atypical chest pain in a pattern not consistent with ischemia and that was atypical for pulmonary or gastrointestinal (GI) etiology. Similarly, the May 1994 MEB report noted atypical chest pain that was evaluated by internal medicine and determined to be not related to ischemia, pulmonary, or GI causes.

Within one year after separation, a February 1995 VA general medical examination noted that the Veteran denied a history of bronchial asthma and did not smoke, and he had a reactive PPD skin test for TB in 1986 but was given INH for one year and his chest X-ray was within normal limits. The February 1995 chest X-ray was normal, and no respiratory diagnosis was given.

Private treatment records in January 2013 reflect emergency department and followup treatment for smoke inhalation. The Veteran reported that he had recently driven a car that was smoking with the windows up, stating that he was transporting a car between two cities, the car was smoking so much that his wife could not see the vehicle from behind him, and he could not go above 20 miles per hour. Since that time, the Veteran had been having shortness of breath and worsening throat and mouth pain as well as and other symptoms, but no cough or chest pain. The impression was smoke inhalation, the Veteran was prescribed an antibiotic (Ceftin) and a steroid (prednisone), and he was advised that his symptoms would take time to improve. 

A February 2015 private treatment record noted that the Veteran was seen for a congested cough for one week with shortness of breath when coughing. X-rays of the chest and lungs showed a focal consolidation in the right middle lobe noted as probably infectious or inflammatory, but the study could not entirely exclude an underlying pulmonary nodule. The radiologist recommended followup X-rays after treatment. In March 2015, the Veteran was again seen for congestion and nasal drainage with a cough at night for several weeks, and a repeat X-ray was normal as compared to February 2015. The impression was acute sinus infection and acute bronchitis. A March 2016 private record noted that the Veteran smoked cigarettes.

VA treatment records in January 2018 noted that the Veteran was taking over-the-counter treatments for nasal and head congestion, a runny nose, and cold sweats for four days, and he stated that it was now “going into his lungs.” The provider noted that the Veteran was not a smoker and did not have chronic obstructive pulmonary disease (COPD) or asthma, and he was aware that viral-type infections have to run their course and do symptomatic treatment. 

A July 2018 VA treatment record noted that the Veteran had been treated seven days earlier for bronchitis and still had symptoms after treatment with a Z-Pak (or antibiotics). The provider noted that he continued to smoke four cigarettes a day despite being advised to quit, and he used an albuterol inhaler as needed. The assessment was acute bronchitis, and the Veteran was advised to stop smoking.

An August 2018 VA treatment record noted that the Veteran had chest congestion but no shortness of breath for two to three weeks, and he was around cigarette smokers. The assessment was bronchitis and passive smoke exposure. A September 2018 record noted that the Veteran was prescribed an albuterol inhaler as needed for breathing problems. An October 2018 record noted his history of treatment for TB with INH in the 1980s and that his test was still positive, and his exercise tolerance included knee problems and shortness of breath after walking one block. 

A July 2015 VA examiner found no diagnosis of a respiratory disorder. The Veteran reported having chronic shortness of breath with physical activity, but no current cough, wheeze, night sweats, or hemoptysis. He reported his history of treatment for TB in 1987, but the examiner noted normal X-rays in 1987, 1991, 1995; normal current physical examination, and pulmonary function tests (PFTs) were pending. 

As directed in the prior remand, the Veteran was afforded another VA examination for his claimed respiratory disorder or shortness of breath to determine whether there is a current diagnosis and address direct service connection. 

During his October 31, 2019, examination, with a report in January 2020, the Veteran reported a history for his claimed respiratory condition that it began with shortness of breath and chest pressure, inhalers were given, he continued to have the same symptoms, and he was unable to stand or walk for long. Chest X-rays showed no acute cardiopulmonary process, and pulmonary function tests (PFTs) had normal pre-bronchodilator results, so no post-bronchodilator tests were completed. This examiner opined that the Veteran does not have a current diagnosis of a respiratory disorder, stating that he had shortness of breath and fatigue but no etiology could be found for his shortness of breath. The examiner stated that the Veteran may need a more specialized assessment from a pulmonologist. 

The two VA examiners’ opinions are probative and adequate because they applied medical expertise to an accurate factual history. No further VA examination or opinion is needed because the medical evidence is sufficient to decide the claim. 

As summarized below, VA and private treatment records noted shortness of breath, chills, and night sweats at times, which were attributed to acute bronchitis, acute sinus or an inflammatory or infections process, and the Veteran was advised that those viral-type symptoms need to run their course. Otherwise, the Veteran reported shortness of breath associated with limited exercise tolerance. There was no diagnosis of chronic bronchitis, chronic sinusitis, or other chronic or ongoing respiratory disorder. Although X-rays in February 2015 were abnormal, X-rays in March 2015 after treatment were normal, and prior and subsequent X-rays during and since service were normal. Similarly, although the Veteran had a positive TB skin test and treatment in service, he had no active TB symptoms and X-rays were normal. Post-service VA and private treatment records also noted that passive cigarette smoke exposure, the Veteran’s own cigarette smoking, and/or inhalation of smoke or exhaust from a car contributed to his periodic shortness of breath and nasal congestion or breathing complaints.  

Additionally, the Board notes that the rating criteria for mental health disorders includes panic attacks, which are commonly known to involve shortness of breath and chest pain at times. See 38 C.F.R. § 4.130, Diagnostic Code 9521. The Veteran complained of panic attacks at times, such as in May 2017. Thus, his complaints may be related, in part, to panic attacks from his service-connected mood disorder.

There is also no indication that the Veteran’s shortness of breath, chills, or night sweats result in functional impairment of earning capacity to establish a disability without an underlying diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8 (2020). Any shortness of breath that may affect his earning capacity due to limited exercise tolerance or restrictions in physical activity from the Veteran’s bilateral knee and back disabilities is already contemplated by the ratings for functional impairment and limited motion or instability for those disabilities. Similarly, to the extent the Veteran may have shortness of breath, chills, or night sweats associated that may result in decreased productivity or earning impairment of earning capacity related to his mental health disability, those impacts are contemplated by his assigned rating for mood disorder. 

In summary, the Veteran has not had a diagnosis of a respiratory disorder or other disability manifested by shortness of breath, night sweats, or chills at any time during or approximate to the pendency of the claim. As the preponderance of the evidence is against service connection for a separate disability, there is no reasonable doubt to resolve in his favor. The appeal is denied.

Increased Ratings

VA’s percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

A separate or higher rating may be assigned based on non-overlapping conditions and symptoms, if the compensable criteria under applicable diagnostic codes are met, including with consideration of additional functional loss after repetitive use or flareups for musculoskeletal conditions based on range of motion. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Pain itself does not constitute functional loss, and painful motion must result in functional loss to constitute limited motion for a rating under diagnostic codes based on limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). A staged rating may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007).

This decision focuses on the evidence pertinent to the rating criteria and disability severity during the relevant period on appeal for each issue, but the Board has considered the entire record to have a full picture of the disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). 

5. , 6., 7., and 8. Entitlement to increased ratings for a left knee disability, currently rated 10 percent prior to October 31, 2019, and 30 percent thereafter, based on limited or painful motion; with a separate 10 percent effective since March 18, 2011, and 20 percent since October 31, 2019, based on lateral instability 

As discussed below, the Veteran submitted his current claim for increase in November 2008. He seeks higher ratings for his left and right knee disabilities, which are currently assigned separate staged ratings based on arthritis (DC 5003) with painful or limited motion, primarily flexion (DC 5260), and lateral instability (5257). The evidence also raises a possibility of impairment from a torn meniscus. 

The lay and medical evidence for the Veteran’s bilateral knee disabilities overlap significantly. Therefore, they will be summarized together below, with additional analysis as to the additionally staged (and reduced) ratings for the right knee.

Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. Although the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. A rating may also be assigned for meniscal impairment if there are non-overlapping symptoms. The Board will explore all possibilities in this case.

VA recently amended the regulations for rating knee disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5257 and 5262). The changes in DC 5257 for other knee impairment of recurrent subluxation or lateral instability, which now also adds patellar instability, is applicable to this case and is set forth below. The Veteran is entitled to application of the criteria that are most favorable to his claim, but a higher rating may not be granted under the new criteria prior to their effective date.

Under DC 5003 for degenerative arthritis, when limitation of motion of the specific joint is noncompensable under the appropriate DC, a rating of 10 percent will be assigned for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. If there is no limitation of motion, ratings of 10 or 20 percent are available if there is x-ray evidence of two or more major joints or two or more minor joint groups, requiring occasional incapacitating exacerbations for a 20 percent rating. 38 C.F.R. § 4.71a.

Similarly, where limitation of motion is not compensable under the specific code for a joint, 38 C.F.R. § 4.59 provides for a minimum compensable rating for actually painful joints in conjunction with a diagnostic code based on limitation of motion, whether or not there is arthritis. Sowers v. McDonald, 27 Vet. App. 472, 479 (2016); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).

Under both sets of criteria, VA considers normal knee range of motion to be from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate I.

Under DC 5260, a 10 percent rating is assigned for limitation of flexion of the leg to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Id.

Under DC 5261, a 10 percent rating is assigned for limitation of extension of the leg to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Id.

Where there is painful or limited motion with both flexion and extension, but the compensable criteria are not met for either flexion (DC 5260) or extension (DC 5261), only one minimum rating of 10 percent should be assigned. Separate ratings may not be assigned for painful or noncompensable limitation of motion using DC 5003 or section 4.59 in connection with 5260, and compensable limitation of extension under DC 5261. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Under the criteria effective prior to February 7, 2021, DC 5257 provides that recurrent subluxation or lateral instability will be assigned a 10 percent rating where it is mild, a 20 percent rating where it is moderate, or a maximum 30 percent rating where it is severe. 38 C.F.R. § 4.71a. 

Under the criteria effective February 7, 2021, DC 5257 provides that recurrent subluxation or instability will be assigned a 10 percent rating for a 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 will be assigned if there is one of the following: (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 30 percent rating requires an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Id. 

There are also new criteria for patellar instability under DC 5257. A 10 percent rating is assigned 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 assigned 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 assigned 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. Id. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. at 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. at Note (2).

Under DC 5258, a dislocated, or torn, semilunar cartilage or meniscus, with frequent episodes of “locking,” pain, and effusion into the joint will be assigned a 20 percent rating. Id. DC 5259 addresses post-surgical meniscal conditions. Id.

In this case, for his left knee, the Veteran is currently assigned a staged rating based on painful or limited motion, primarily with flexion, of 10 percent prior to October 31, 2019, and 30 percent for limited flexion thereafter. As explained below, the evidence supports a 20 percent rating prior to October 31, 2019, based on left knee limited flexion, but not in excess of 30 percent since October 31, 2019. However, a separate rating for the left knee disability of 10 percent based on limitation of extension since the November 25, 2008, claim for increase is also warranted.

The Veteran is also currently assigned a separate rating for left knee lateral instability under DC 5257 of 10 percent, effective since March 18, 2011, and 20 percent since October 31, 2019. Higher ratings are not warranted in this regard.

9. , 10., 11., 12., and 13. Entitlement to increased ratings for a right knee disability, currently rated 10 percent prior to May 12, 2011; 20 percent from May 12, 2011; 10 percent from February 21, 2017 (to include restoration of the 20 percent rating); and 30 percent since October 31, 2019, based on painful or limited motion; with a separate 10 percent effective since March 18, 2011, and 20 percent since October 31, 2019, based on lateral instability

For his right knee, the Veteran is currently assigned a temporary total rating based on arthroscopic surgery and convalescence, effective June 8, 2010, to August 30, 2010. Although he initially appealed from the assigned dates for this rating, he withdrew that appeal. A noncompensable (0 percent) rating was also awarded for right knee surgical scars, effective since September 1, 2010, which is not disputed. Therefore, only the other ratings and periods on appeal are before the Board. 

The Veteran’s right knee is currently assigned a staged rating based on painful or limited motion for arthritis (DC 5003) with resulting painful or limitation motion primarily with flexion (DC 5260) of 10 percent before and after his surgery. 

A September 2011 rating decision granted a separate 20 percent rating for right knee limitation of extension, effective May 5, 2011, although subsequent code sheets state that it was effective May 12, 2011 (the date of the VA examination). Therefore, the Veteran was in receipt of two separate ratings for limited motion: a 10 percent rating for painful motion under DC 5003-5260 and a 20 percent rating for limitation of extension under DC 5261. 

An April 2017 rating decision found clear and unmistakable error (CUE) in the assignment of a separate rating for extension and stated that the separate 10 percent rating based on painful motion was discontinued, effective February 21, 2017. Because there was no change to the Veteran’s compensation level as a result of the reduction, no due process notice was required. See 38 C.F.R. § 3.105. The April 2017 decision explained that CUE was found because the Veteran did not meet the compensable criteria under DC 5260 for limited flexion to 45 degrees or less in addition to the compensable criteria under DC 5261 for limited extension to 10 degrees or more as of May 12, 2011. The decision correctly noted that only one rating may be assigned for painful motion that does not meet the compensable criteria under a code based on motion. 

A rating may be reduced based on clear and unmistakable error (CUE) in the initial rating or based on an improvement in the disability. See 38 U.S.C. § 5112; 38 C.F.R. § 3.105. If there as CUE in a prior final and binding decision, the prior decision will be reversed or amended, and the effective date will be the same as if the correct decision had been made on the date of the reversed decision. 38 U.S.C. § 5109A; C.F.R. §§ 3.105(a). If the special procedural prerequisites for a rating reduction are not followed, the reduction is void ab initio and reinstatement of the prior rating is required. Schafrath v. Derwinski, 1 Vet. App. 589, 595-96 (1991).

A determination of CUE is a three-pronged test. First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied. Second, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Third, a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. All three prongs must be met to establish CUE. Russell v. Principi, 3 Vet. App. 310 (1992). 

CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). 

In this case, as explained below, the evidence does support a finding of right knee compensable limitation of flexion and compensable limitation of extension, when resolving reasonable doubt in the Veteran’s favor. Therefore, reasonable minds could differ as to the prior outcome, and the determination of CUE was improper. Restoration of the separate 10 percent rating effective May 12, 2011, with an increase to 20 percent based on limited flexion under DC 5260, is warranted.

A March 2020 rating code sheet reflects that the Veteran is assigned a 10 percent rating for painful or limited motion primarily with flexion under DC 5003-5260, effective February 21, 2017, until the award of a 30 percent rating based on limited flexion, effective October 31, 2019. This appears to contradict the determination in the April 2017 decision that the rating under DC 5260 was discontinued, in favor of the rating under DC 5261 contemplating noncompensable painful motion with flexion. Nevertheless, because the evidence warrants a 20 percent rating based on right knee limitation of flexion prior to October 31, 2019, this results in an increased award for that period under DC 5260, in addition to the separate 20 percent rating for limitation of extension under DC 5261. A rating in excess of 30 percent for limitation of motion since October 31, 2019, is not appropriate.

The Veteran is also assigned a separate rating for lateral instability under DC 5257 of 10 percent, effective March 18, 2011, and 20 percent since October 31, 2019. Higher ratings on this basis are not warranted under the new or old criteria.

Limitation of Motion for Bilateral Knees

Specifically, throughout the appeal period, the Veteran’s bilateral knee disabilities manifested by pain or discomfort, painful or limited flexion and extension, and instability at times. He had a right knee arthroscopic surgery in June 2010, and he cancelled a scheduled left knee arthroscopic surgery in November 2019. The Veteran has taken narcotic and other pain medications, as well as other non-surgical treatment modalities, with little or no relief of his knee pain. Therefore, discounting any ameliorative effects of medication do not warrant a higher rating.

Resolving reasonable doubt in the Veteran’s favor, a 20 percent rating is warranted for both left and right knee limitation of flexion to 30 degrees prior to October 31, 2019. As summarized below, although he had flexion to significantly higher degrees at times, the evidence supports finding additional limitation of flexion to 30 degrees due to pain and other factors with flareups or repeated use over time. 

During a January 2009 VA examination, the Veteran stated that his right knee was worse than his left knee, but most of his problems in both knees were similar. He reported constant knee pain that he described as “bone to bone grinding,” a sharp pain in the front of the knees that he rated as 7 to 8 out of 10, and that was associated with stiffness and weakness. The Veteran stated that his bilateral knee pain increased or had daily flareups of increased pain with activities, including weightbearing, carrying weight great than 20 pounds, walking more than 150 feet, kneeling or bending, rising from kneeling or squatting, climbing up or down stairs, turning around type movements, and driving for extended periods. The Veteran reported heat without redness or swelling. Treatment through physical therapy and other modalities, as well as narcotic and other pain medications did not help much.

Left knee active flexion was measured to 90 degrees, with pain at 35 degrees; passive flexion was to 140 degrees, with pain at 60 degrees; and extension was to 0 degrees with both active and passive motion. The examiner noted that repetitive testing five times caused increased pain and other contributing factors and resulted in more flareup pain at a level of 8 to 10 out of 10, resulting in additional limitation of motion. The examiner stated that flexion decreased from 140 degrees to 130 degrees, which reflects a change in passive motion, but did not specify any resulting change in active motion. Extension stayed at 0 degrees. There was palpable crepitus with a patella click, and guarding at the extremes of movement. 

Right knee active flexion was measured to 50 degrees, with pain at 45 degrees; passive flexion was to 140 degrees, with pain at 60 degrees; and extension was to 0 degrees with both active and passive motion. Repetitive testing five times caused increased pain and other contributing factors and resulted in more flareup pain at a level of 8 to 10 out of 10, resulting in additional limitation of motion. The examiner did not specify the degree of additional right knee limitation. There was palpable crepitus with a patella click, and guarding at the extremes of movement. 

In a June 2009 correspondence, the Veteran stated that he could not flex his knees past 5 percent without excessive pain. It is unclear what degree this would represent, and range of motion must be measured with a goniometer to determine the proper rating. He described similar impairments of being unable to sit or stand for more than 30 minutes or walk for any distance, and having pain with climbing or descending stairs. The Veteran also stated that his knees hurt when standing without flexing, it felt like the bones in his knees are grinding, he had difficulty sleeping due to pain despite medications, and he used a cane and knee braces. 

The Veteran also argued that the prior VA examination was inaccurate, in that he believed his range of motion was more limited than recorded because the examiner used tactics that caused unnecessary pain to measure his range of motion. The Veteran was provided subsequent VA examinations, and his lay reports and treatment records have also been considered in determining his limitation of motion. The ranges of motion recorded in January 2009 are consistent with some of the subsequently recorded measurements or estimates of loss, which the Veteran has not disputed. Therefore, the 2009 VA examination is probative and adequate.

An August 2009 private treatment record noted bilateral knee pain but full range of motion of all joints in the extremities upon examination. Similarly, an October 2009 VA treatment record noted chronic bilateral knee pain but good active range of motion of all extremities. The Veteran was independent in ambulation (walking) without a cane or walker, but he had been wearing bilateral wrap-around knee braces that needed replacement, and he was referred for replacement of the braces.

A February 2010 VA treatment record noted that the Veteran had braces on both knees, and he could not flex his knees beyond 30 degrees. This degree of limitation warrants a 20 percent rating under DC 5260, and it is generally consistent with the increased pain and impairment during flareups or after repeated use over time. 

Although the Veteran had higher measurements of flexion until the October 31, 2019, VA examination, there is no indication that his left or right knee conditions or function improved during the appeal period. He reported continued pain and other impairment after his right knee arthroscopic surgery in 2010. A January 2013 VA treatment record noted that he reported much worse knee pain when the weather became very cold a month earlier. The Veteran continued to have crepitus, grinding, and clicking or snaps of the knees with motion; and his measured flexion for both knees varied widely. The left knee ranged from 40 degrees after repetitive testing to full flexion (or 140 degrees) with pain; and the right knee ranged from 48 degrees after repetitive testing to full flexion. See, e.g., VA treatment records in March 2011, July 2016, and June 2019; private treatment record in March 2018; VA examinations in May 2011, July 2015, and February 2017. 

The Veteran continued to report similar functional impairments as described in 2009 and 2010 during episodes of increased pain, stiffness, swelling, etc., primarily with flexion or bending type movements, as well as using knee braces and a cane at a times. In addition to such reports for treatment and examinations, he gave similar statements in May 2011, October 2011, August 2012, December 2013, July 2015, January 2016, December 2016, August 2017 (Board hearing). The 2011, 2015, and 2017 VA examinations did not give an estimate for additional loss of range of motion during flareups or repeated use over time. A June 2019 VA orthopedic surgery consult noted that a May 2019 private MRI of the left knee showed a degenerative medial meniscal tear. Although a McMurray’s test for meniscal impairment was negative, the Veteran reported some locking and catching, but no swelling or effusion. He had pain, but full range of motion. 

For the above reasons, reasonable doubt is resolved in the Veteran’s favor to find that he had a similar level of impairment during episodes of increased pain and other factors from his November 2008 claim until October 30, 2019. Thus, a 20 percent rating based on limited flexion is warranted for this period for both knees. 

During the October 31, 2019, VA examination (with a January 2020 report), the Veteran had left knee flexion limited to 55 degrees, but the examiner estimated additional left knee loss after repeated use over time to 35 degrees, and during flareups to 15 degrees. Measured right knee flexion was limited to 50 degrees, with an estimated additional left knee loss after repeated use over time to 30 degrees, and during flareups to 10 degrees. These estimated additional losses support the assigned maximum 30 percent ratings for each knee based on limitation of flexion to 15 degrees under DC 5260. However, the evidence does not show a factually ascertainable increase before the examination date, as explained above.

A November 2019 VA treatment record noted that the Veteran called to cancel his left knee arthroscopy that was scheduled for the following day. There is no argument or indication of a subsequent increase in severity for a higher rating.

Throughout the appeal period, including before and after the October 2019 VA examination, the Veteran generally had full bilateral knee extension measured to 0 degrees despite pain or discomfort. However, in a June 2009 correspondence, he reported having pain while standing even without flexing his knees, which would involve extension. A May 2011 VA examination measured left knee extension as limited by 10 degrees, which supports a separate rating of 10 percent under DC 5261. Resolving reasonable doubt in the Veteran’s favor, a 10 percent rating is warranted for limited extension when considering the effects of increased pain and other factors during flareups or after repeated use over time, such as extended standing or weightbearing. Accordingly, a separate 10 percent rating is warranted.

Similarly, the May 2011 VA examination measured right knee extension limited by 18 degrees, which supports a separate rating of 20 percent under DC 5261. Resolving reasonable doubt in the Veteran’s favor, a 20 percent rating is warranted for limited extension to 15 degrees, when considering the effects of increased pain and other factors during flareups or after repeated use over time, such as extended standing or weightbearing. Accordingly, a separate 20 percent rating is warranted based on limitation of extension. However, the Veteran’s limitation of extension did not meet the criteria for a 30 percent rating of extension limited to 20 degrees. The evidence reflects that the measurement of 18 degrees would be the Veteran’s highest degree of impairment, whereas he had lesser impairment otherwise despite pain and other contributing factors with flareups or repeated use over time.

Instability or Other Knee Impairment

In addition to limitation of flexion and extension, the Veteran has given generally consistent descriptions over the course of the appeal of a feeling or sensation of weakness, giving way, or instability of both knees that has been present for years. These sensations cased him to fall at times, particularly when climbing or descending stairs. The Veteran wore bilateral knee braces, ankle braces or high-top boots for his feet and ankles, and used a cane at times for stability and balance. See, e.g., statements in June 2009, May 2010, May 2011, October 2011, August 2012, January 2016, December 2016, and August 2017 (Board hearing); VA treatment records in March 2009, October 2009, February 2010, March 2011, May 2012, December 2012, September 2013, July 2016, October 2018, and June 2019; private treatment records in March 2018 and August 2019; VA examinations in January 2009, May 2011, July 2015, February 2017, and October 2019.

As summarized below, there are notations of lateral instability or recurrent subluxation at times. There are also suggestions of meniscal impairment, but no definite right knee meniscal tear, and no left knee surgery for meniscal tear.

The Veteran has given competent and credible descriptions of his observable sensations. However, he is not competent to identify the underlying etiology of his subjective feelings of instability, weakness, locking or catching, swelling, etc. or whether these symptoms are manifestations of ligamentous or meniscal impairment or his bilateral lower extremity neurologic impairment. In particular, the Veteran is not competent to state whether there is lateral instability or, under the new rating criteria, instability with ligamentous sprain or tear or patellar instability. These matters require medical expertise to interpret the Veteran’s history and tests due to the complex nature of the knee joint and multiple potential causes of symptoms. Therefore, the medical evidence is the most probative as to the underlying etiology. 

Specifically, in August 2008, X-rays of both knees showed mild narrowing of joint compartments, but no dislocation. The right knee also had scattered artifacts visualized, and the left knee had a suprapatellar effusion visualized.

During a January 2009 VA examination, the Veteran reported that his knees both give way at least twice a week, particularly while going up or down a set of stairs, causing him to fall or catch himself. He reported wearing braces on both knees for years, although he was not wearing a brace or using another corrective or assistive device (to include a cane or walker) during the examination. The Veteran denied swelling but reported that his knee feels stiff, as if it locks. He had a normal gait and was steady without an assistive device. Bilateral knee tests for instability and meniscal impairment (McMurray’s test) were negative or normal. 

A March 2009 VA treatment record noted the Veteran’s complaints of knee pain and frequent falling due to instability, but stated that he may be on excessive narcotics that may contribute his frequent falls more than his knee disabilities.

As noted in a July 2015 VA examination, a March 2010 MRI of the right knee for pain and buckling had findings that suggested chondromalacia patella, possibly secondary to early osteoarthritis of the patellofemoral joint, and a degenerative signal (grade 2) within the medial meniscus but without a surgical tear. There was no significant joint effusion, and all ligaments were intact. 

A June 6, 2010 VA treatment record noted complaints of right knee pain and frequent falls, and found mild quadriceps atrophy at the right knee, but no knee instability. The Veteran reported that his right knee occasionally swelled, but the McMurray’s test was negative. X-rays of the right knee were normal. An MRI of the right knee showed irregularity on the patella articular surface, indicating changes of chondromalacia. The impression was possible chondromalacia of the patellofemoral compartment, and the plan was arthroscopic debridement of the right knee. As noted in a July 2015 VA examination, this March 2010 MRI report for right knee for pain and buckling had a provisional diagnosis of a meniscal tear, but the impression was findings that suggested chondromalacia patella, and a degenerative signal (grade 2) within the medial meniscus but without a surgical tear. There was no significant effusion, and all ligaments were intact.

VA treatment records on June 8, 2010, then note that the Veteran was status post arthroscopic debridement of the right knee, for which he has received a temporary total rating. During his convalescence period, a July 2010 record noted that he had undergone a right knee arthroscopic debridement, and the provider reviewed the surgery report that showed chondromalacia patella, and there was 25 percent of chondromalacia patellae that was debrided. (There was no indication of meniscal or ligamentous repair.) Also in July 2010, a VA record for back pain and leg weakness noted difficulty walking and needing to use a cane, but physical examinations showed no joint instability in the knees and full strength of 5 out 5. 

After the convalescence period for the right knee ended, effective in September 2010, a November 2010 VA record found no laxity or effusion in the left knee.

A March 18, 2011, VA treatment record was the first medical notation of lateral instability. The Veteran reported wearing bilateral knee braces and using a cane due to frequent falls as a result of his knees buckling. The provider noted in this record and a letter on the same date that the Veteran had polyneuropathy, and upon removing the knee braces, he had very weak muscles or poor quadriceps tone, right side worse than left. There was also mild lateral instability of both knees.

A May 2011 VA examination noted bilateral weakness of the quadriceps muscle of the thigh with reported giving way or instability of the knees. Physical examination showed an antalgic gait with poor propulsion and mild instability of the right knee, but no instability of the left knee. The Veteran denied subluxation or dislocation and locking or effusions, and there was no patellar or meniscus abnormality.

An October 2012 VA neurologic consult found normal muscle strength and tone, although the Veteran walked with a cane and was wearing knee braces. A December 2012 VA record noted that the Veteran was walking with a cane, but he walked better than before because of his braces on both legs over his knees.

A July 2015 VA examination found normal muscle strength of 5 out of 5 for bilateral knee flexion and extension, although the Veteran continued to use bilateral knee braces and a cane for support and stability. Objective stability tests were decreased to 1+ for lateral stability of the left knee, but otherwise normal; and right knee tests for stability were all 2+ or normal. The Veteran denied a history of recurrent subluxation. He reported recurrent effusion described as swelling of the knees one a week; however, swelling is different than effusion into the joint. The examiner noted the results of a March 2010 MRI for the right knee, as summarized above, and stated that there was a bilateral meniscus condition with frequent joint locking, pain, and effusion. However, these notations are inconsistent with the other lay and medical evidence, including the 2010 MRI and right knee surgery. 

A July 2016 VA treatment record noted bilateral knee pain with reports of giving out and falling at times, tenderness to palpation, but no ligamentous instability. 

During a February 2017 VA examination, the Veteran reported wearing knee braces and had strength of 4 out of 5 for bilateral flexion and extension. Bilateral stability tests were decreased to 1+ for lateral instability, but otherwise 2+ or normal. He also reported that his knees lock up during flareups, such that he cannot walk, but he denied recurrent effusion, and the examiner found no meniscus condition.

A March 2018 private treatment record noted knee and back pain with associated leg weakness, and worse symptoms with knee motion. The Veteran was able to walk across the room without a cane.

A June 2019 VA orthopedic surgery consult noted complaints knee pian and frequently collapsing, especially on stairs, but the Lachman’s test for knee instability was negative. The Veteran reported some locking or catching, but no swelling or effusion. The McMurray’s test for meniscal impairment was negative. However, the provider noted that an outside MRI (which was performed in May 2019 for the left knee and is the file) showed a medial meniscal tear with some irregularity of the medial femoral condylar cartilage, plus an abnormal signal consistent with mild edema or a small subchondral cyst. The cruciate and collateral ligaments were intact with no evidence of a tear, although there was mild bulging of the medial collateral ligaments due to degenerative changes in the medial compartment. The impressions in the MRI report and the VA record were degenerative changes or left knee pain with mechanical symptoms and MRI evidence of a degenerative meniscal tear. The VA provider noted that the Veteran had started on home physical therapy exercises, and he made need surgery. 

An August 2019 private treatment record then noted that the Veteran planned to have a left knee surgery through VA, and he used a cane every now and then to assist with ambulation. The provider stated that the Veteran had a normal gait, his joints were stable, and tests for knee instability were normal or negative.

During an October 31, 2019 VA examination (with a January 2020 report), the Veteran reported using a brace and cane constantly for his knees, although he stated that the cane was also for his back and other lower extremity conditions. The examiner noted a history of slight recurrent subluxation bilaterally and moderate lateral instability bilaterally, and tests for instability were all 1+ bilaterally. The Veteran denied a history of recurrent effusion, and the examiner found no meniscus condition. The examiner stated that the Veteran had a prior right knee arthroscopic surgery with repair of ligaments, with residual pain and increased weakness. However, as summarized above, the medical evidence shows only debridement of chondromalacia patella, with no tear or repair of the ligaments (or meniscus).

As noted above, VA treatment records reflect that the Veteran was scheduled for a left knee arthroscopic surgery in November 2019, but he cancelled the surgery.

Overall, although the Veteran has reported a sensation of instability or weakness in the legs and knees throughout the appeal period, the medical evidence is the most probative as to the underlying cause of his observable symptoms. The medical evidence did not establish an underlying cause as lateral instability until March 18, 2011. Prior to that time, medical tests for stability or laxity were normal in 2009 and 2010. On March 18, 2011, a VA provider noted mild lateral instability for the bilateral knees. Accordingly, a compensable rating based on instability is not warranted for either knee during the appeal period prior to March 18, 2011. 

Subsequent VA examinations and treatment records also noted slight or mild lateral instability or tests results for lateral stability of 1+, which is decreased from the 2+ normal finding. The Veteran also had normal or negative stability findings at times, which does not support more than a mild level of lateral instability. Additionally, treatment records and examinations noted no history of recurrent subluxation.

Even during the October 31, 2019 VA examination, stability tests were all 1+ bilaterally, which is consistent with the prior notations of slight or mild instability. Despite these findings, the examiner recorded a reported history of moderate lateral instability and slight recurrent subluxation bilaterally. A higher rating of 20 percent for moderate instability under the old criteria for DC 5257 was granted on this basis. However, the most probative evidence prior to October 31, 2019, shows no more than slight or mild recurrent lateral instability or subluxation for both knees. Therefore, an increase from 10 percent for either knee is not warranted.

Additionally, the evidence does not support more than moderate lateral instability under the old DC 5257 criteria. The most probative medical evidence, including a right knee MRI and surgery report in 2010 and a left knee MRI in 2019, also showed no ligamentous strain, tear, or repair. To warrant a rating higher than 20 percent based on the new criteria for DC 5257, effective since February 7, 2021, there must be a complete ligament tear, which is not shown for either knee. 

Considering the new criteria for patellar instability, effective February 7, 2021, there is no indication that separate ratings may be assigned for patellar instability and lateral instability, as they are both under DC 5257. A higher rating of 30 percent requires 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. 

In this case, the Veteran has a diagnosis of bilateral chondromalacia patella involving the patellofemoral complex, including decreased tone, strength, or atrophy of the quadriceps muscles or tendons at times. See Note (1) to new DC 5257. There has been no left knee surgery, so a higher rating cannot be granted.

The Veteran underwent a right knee surgical debridement for chondromalacia patella in June 2010, which may have addressed a patellofemoral component that contributes to underlying instability. See Note (2) to new DC 5257. However, the evidence does not reflect that he requires a prescribed brace and a prescribed cane or walker. The Veteran was prescribed knee braces, and records noted that braces were reissued. However, the records noted that he could walk without a cane at times, and there is no indication that he was prescribed the cane, as opposed to obtaining it on his own. Moreover, records and examinations reflect that the Veteran used a cane for multiple disabilities, not solely for his knee problems. Accordingly, a higher rating of 30 percent is not warranted on this basis.

Finally, concerning meniscal impairment, a May 2019 MRI noted a left knee meniscal tear. However, the evidence does not show non-overlapping symptoms of frequent pain, locking, and effusion into the joint as required for a separate 20 percent rating under DC 5259. The Veteran occasionally reported locking, but he generally denied locking. Similarly, although he reported frequent pain and swelling at times, swelling is different than effusion into the joint. An August 2008 X-ray for the left knee noted effusion into the joint, but there were otherwise no effusions. McMurray’s testing for meniscal impairment or symptoms were repeatedly negative or normal. Accordingly, the Veteran’s frequent pain is contemplated by his ratings for limited flexion and limited extension, and he had only intermittent or occasional locking and effusion into the joint. This does not rise to a compensable level for a separate rating under DC 5258.

For the Veteran’s right knee, the MRI in March 2010 prior to his June 2010 right knee arthroscopic surgery showed a degenerative signal but no surgical tear of the meniscus. The surgery performed only debridement of the chondromalacia patella. Similar to his left knee, to the extent he may have a potential right knee meniscus tear or dislocation, the Veteran’s frequent pain is contemplated by his ratings for limited flexion and limited extension, and he had only intermittent or occasional locking, with swelling at times but no effusion into the joint. This does not rise to a compensable level for a separate rating under DC 5258.

Finally, there no argument or indication of ankylosis (DC 5256); impairment of the tibia or fibula (to include medial tibial stress syndrome (MTSS) or shin splints, as noted in the amended knee criteria (DC 5262); or genu recurvatum (DC 5263). 

In summary, reasonable doubt has been resolved in the Veteran’s favor to award partial increases and separate ratings for his bilateral knee disabilities, to include restoration of the reduction in the right knee rating. The appeals are granted to this extent. Otherwise, the Veteran’s bilateral knee disabilities remained relatively stable during the applicable staged periods. Any increases in severity were not sufficient to meet the criteria for a higher or separate rating. The preponderance of the evidence is otherwise against a higher or separate rating, and there is no reasonable doubt to be resolved in his favor, and the appeals are otherwise denied.

14. Entitlement to an increased rating in excess of 20 percent for a back disability prior to October 31, 2019, and in excess of 40 percent thereafter

The Veteran submitted his current claim for an increased rating for his back disability with sciatica in June 2009. He seeks a higher rating due to pain and resulting impairment. His lower extremity contentions are discussed below. 

Historically, a May 1996 rating decision granted service connection for a back disability with bilateral sciatica of the lower extremities, rated 10 percent as one condition, effective since his September 14, 1994, service discharge. A November 2009 rating decision denied an increase from 10 percent, but during the appeal period the Veteran was granted a staged increase for his back disorder of 20 percent since June 2, 2009, and 40 percent since October 31, 2019. He was also granted separate ratings for sciatica of the bilateral lower extremities of 20 percent, effective since June 2, 2009, and 40 percent since October 31, 2019. See rating decisions in February 2011, September 2011, December 2015, and January 2020.

Spinal disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides for assignment of a separate rating for any associated objective neurological abnormalities. The identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. If there is intervertebral disc syndrome (IVDS), the disability will be rated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 should be used. See 38 C.F.R. § 4.71a, DCs 5237 & 5243, General Rating Formula & Note (1), IVDS Formula & Notes (1) & (2). 

VA recently amended the regulations for rating spinal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, & 5244). As relevant to this case, these changes result in distinctions between IVDS (still rated under DC 5243 as an alternative to the General Rating Formula as summarized above) and degenerative disc disease other than IVDS (now rated under DC 5242 but not DC 5243). Because there were medical notations of IVDS in this case, the applicable analysis remains the same under both sets of rating criteria, and neither set is more favorable to the Veteran. The addition of DC 5244 is for traumatic paralysis, to include paraplegia or quadriplegia, which is not applicable to this case.

Under the General Rating Formula, a 10 percent rating will be assigned where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 40 percent requires forward flexion limited to 30 degrees or less. Ratings of 40, 50 or 100 percent require ankylosis of portions of the spine. 38 C.F.R. § 4.71a, DC 5242.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of these ranges of motion. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. at Note (2) & Plate V. Each measurement should be rounded to the nearest five degrees. Id. at Note (4).

For this purpose, VA defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in associated complications. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Id. at Note (5). Recent case law clarified that for the purpose of rating spinal disabilities, the criteria for ankylosis can be met by evidence of the functional equivalent of ankylosis during a flareup. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021). Ankylosis is a medical term meaning fixation or immobility of a joint, or “in essence, a complete limitation of motion,” and it is an objective finding. Id.

Throughout the appeal period, the Veteran has described significant back pain. However, the evidence reflects distinct levels of functional impairment consistent with the currently assigned staged ratings prior to October 31, 2019, and thereafter. 

Specifically, the Veteran has reported significant pain, as well as spasms and stiffness at times, throughout his thoracolumbar spine. His pain radiates throughout his lower, middle, and upper back. It has been present for years and is essentially constant, varying from a level of approximately 5 to 10 out of 10. Physical examinations noted diffuse pain or tenderness at times. The Veteran’s back pain is worsened when standing or sitting, including at work or while driving, as well as while sleeping lying down (at rest). He must move around to decrease his pain, and his pain wakes him up. The Veteran also reports that his back pain increases with bending or flexion forward, backwards (extension), and to the sides (right and left lateral flexion and rotation). He also has difficulty or increased pain when reaching, lifting or carrying items weighing more than 15 pounds, or climbing stairs. The Veteran had abnormal gait or spinal contour at times, and a provider in 2017 noted that he “hunches” or bends his back forward while walking. These symptoms of pain, increased pain during flareups and after repeated use over time, and resulting functional impairment are present despite the use of various narcotic and other pain medications or other treatment modalities. The Veteran has reported indicated that his medications and other treatment give little or no relief. He misses work at times due to back pain, and he has multiple ergonomic work tools and furniture to assist with his pain and function. The Veteran also uses ankle and knee braces and a cane at times, but he generally reports that these are largely for his knees. See, e.g., Veteran statements in June 2009, May 2011, October 2011, August 2012, December 2013, July 2015, January 2016, December 2016, and August 2017 (Board hearing); VA treatment records in March 2009, April 2009, May 2010, July 2010, September 2013, and September 2017; private treatment record in March 2016; VA examinations in August 2010, July 2015, and October 2019 (January 2020 report).

Because the Veteran continued to have significant pain despite his medications, the ameliorative effect of such treatment does not result in improved function. In other words, taking away the improving effects of his medications does not result in more limitation of motion. Accordingly, they do not warrant a higher rating.

Prior to October 31, 2019, the Veteran retained a higher level of function for forward flexion to greater than 30 degrees, as well as other ranges of motion of the thoracolumbar spine, despite his pain. In a June 2009 correspondence, the Veteran stated that he could not flex past two percent without constant pain throughout his spine. It is unclear what degree of motion this would represent; however, the rating criteria for the spine expressly state that the indicated ratings contemplate pain. As noted above, pain or painful motion alone does not warrant a higher rating, as it must result in functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

A July 2010 VA treatment record noted unspecified decreased range of motion in all directions for the lumbar or thoracolumbar spine with pain for all motions.

During an August 2010 VA examination, the Veteran reported moderate weekly flareups precipitated by various activities as summarized above, and that his range of motion or function was moderately more limited mostly by pain after repetitive use or during flareups. The examiner measured forward flexion to 60 degrees that was additionally limited to 45 degrees after repetitive testing, mostly due to pain. Other ranges of motion of extension, left and right lateral flexion, and left and right lateral rotation were to 20 degrees each, and were additionally limited to 10 or 15 degrees after repetitive testing. The Veteran had pain on active range of motion. 

The Veteran indicated in a December 2013 statement for his claim that his back was worse, noting that he was unable to get up and stretch or move every 20 minutes at his job. However, he had similar resulting limitation of motion in 2015. 

During the July 2015 VA examination, the Veteran denied flareups. Instead, he reported constant pain that was currently 9 out of 10, and stated that he felt like a “truck ran him over” by the end of the workday. The examiner again measured forward flexion to 60 degrees; and other ranges of motion of extension, left and right lateral flexion, and left and right lateral rotation were to 20 or 25 degrees each. The Veteran had pain with all movements and weightbearing, which caused to the indicated functional loss, but no additional limitation after repetitive testing. 

During the October 31, 2019 VA examination (with a January 2020 report), the Veteran described a higher level of functional impairment resulting from his pain and other factors, which was consistent with the measured and estimated limitations. In contrast to the prior lay and medical evidence, the Veteran reported severe daily flareups precipitated by various activities as summarized. Although he had previously reported being able to walk 20 to 30 minutes, he now reported being limited to only 5 to 10 minutes of walking before having severe symptoms. The examiner measured forward flexion to 20 degrees; extension and left and right lateral flexion were also limited to 5 degrees each; and left and right lateral rotation were to 30 degrees each. The Veteran had pain with all movements and weightbearing, which caused the indicated functional loss, but no additional limitation after repetitive testing. There was pain on active and passive range of motion, but not on non-weightbearing (at rest). The examiner estimated that there would be additional loss with repeated use over time and with flareups of forward flexion to 5 degrees due to pain, fatigue, weakness, and lack of endurance.

As summarized above, throughout the appeal period, the lay and medical evidence establish that the Veteran has had constant back pain despite the use of various medications, which increased at times while at rest as well during flare-ups and after repeated use over time. However, he retained forward flexion of the thoracolumbar spine to greater than 30 degrees prior to October 31, 2019, and he had limitation to 30 degrees or less thereafter, even when considering the effects of additional pain and other factors during periods of increased symptoms. There was no showing of ankylosis or complete limitation of motion to show functional loss that more nearly approximates ankylosis. As noted above, even when he had a high level of pain during the 2015 VA examination, he had significant range of motion. Additionally, even with the Veteran’s demonstrated additional functional loss in 2019, that examiner estimated that he would retain 5 degrees of forward flexion even with increased symptoms, and he had full lateral rotation to both sides, although his lateral flexion was more limited that previously. Accordingly, the Veteran’s ranges of motion did not approach complete limitation of motion, immobility or fixation, to show ankylosis. Therefore, the criteria for a rating higher than 20 percent prior to October 31, 2019, and 40 percent thereafter, are not met.

As discussed below, the Veteran is already assigned two 20 percent ratings for his bilateral lower extremity sciatic radiculopathy prior to October 31, 2019, and 40 percent thereafter. These ratings combine to 40 percent, including the bilateral factor; and they combine with his 20 percent rating for the back to result in a 52 percent rating, which rounds down to 50 percent. See 38 C.F.R. §§ 4.25, 4.26. 

Since October 31, 2019, the separate 40 percent ratings for sciatica combine to 70 percent, including the bilateral factor, and combine with the 40 percent rating for the back to result in an 83 percent rating, which rounds down to 80 percent. Id.

Under the alternative rating formula for IVDS, the next rating higher than 50 percent, and the maximum available rating, is 60 percent. This requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For this purpose, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1) to IVDS Formula. 

In this case, the VA examiners in 2015 and 2019 noted no incapacitating episodes due to the Veteran’s IVDS. The 2010 VA examiner stated that the Veteran had incapacitating episodes 2 to 3 times for 2 to 3 days each in the past 12 months; however, there is no suggestion or indication in treatment records of prescribed bed rest during such episodes. Moreover, this would be only 9 days (3 times at 3 days each), not at least 6 weeks during a 12-month period. Additionally, although the Veteran reported missing at least 20 to 40 days a year from work in an August 2013 statement for his claim, he described back and knee pain and mental health problems. There is again no indication of prescribed bed rest due to back pain to total at least 6 weeks in any 12-month period. Thus, a higher rating is not warranted for the Veteran’s back disability under the alternative IVDS Formula.

There is no indication of associated neurologic abnormality, to include bowel or bladder impairment, other than the already service-connected lower extremities. 

In summary, the manifestations of the Veteran’s back disability were relatively consistent throughout the staged periods on appeal. Any increases in severity did not more nearly approximate the criteria for a higher or separate rating at any point. There is no reasonable doubt to resolve in his favor, and the appeal is denied. 

15. and 16. Entitlement to an increased rating for right lower extremity lumbar radiculopathy of the sciatic nerve in excess of 20 percent prior to October 31, 2019, and 40 percent thereafter; and entitlement to an increased rating for left lower extremity lumbar radiculopathy of the sciatic nerve in excess of 20 percent prior to October 31, 2019, and 40 percent thereafter

The Veteran seeks higher ratings for his right and left lower extremity radiculopathies based on pain, numbness, and other symptoms and resulting impairment. See, e.g., August 2017 Board hearing. In his October 2011 VA Form 9, the Veteran asserted that his lower extremities should be rated 20 percent each for moderate sciatic nerve impairment. Staged ratings of 20 percent prior to October 31, 2019, and 40 percent thereafter, were granted while the appeal was pending.  

There is conflicting medical evidence as to whether the Veteran’s bilateral lower extremity symptoms, particularly in the lower legs and feet, are due to his sciatic nerve impairment from his back disability or his diabetic peripheral neuropathy, which is not service-connected. However, VA spine and peripheral neuropathy examiners in 2015 and 2019 (with a 2020 report) identified the affected nerve as the sciatic nerve. Any nonservice-connected diabetic neuropathy symptomatology has not been clearly distinguished. Therefore, all bilateral lower extremity neurologic symptoms are included with the Veteran’s service-connected ratings.

Under DC 8520, complete paralysis of the sciatic nerve is assigned an 80 percent rating, where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. Lower ratings of 10, 20, 40, or 60 percent are assigned for mild, moderate, moderately severe, or severe incomplete paralysis, respectively. Neuralgia of the sciatic nerve is rated using the same criteria under DC 8720. 38 C.F.R. § 4.124a.

The terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined for these codes. However, the term “incomplete paralysis” for peripheral nerve injuries indicates a degree of lost or impaired function substantially less that the type pictured for complete paralysis. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, introduction prior to DC 8510. Peripheral neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, will be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating for neuritis not characterized by these organic changes will be moderate, or moderately severe if there is sciatic involvement, incomplete paralysis. 38 C.F.R. § 4.123. Peripheral neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, will be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. 

The Veteran’s bilateral lower extremity pain and other neurologic symptomology resulted in distinct levels of impairment, warranting the assigned staged ratings. 

Throughout the appeal period, the Veteran complained of varying levels and frequency of bilateral lower extremity pain down the legs; a burning or prickling sensation, tingling, paresthesias, or dysesthesias; weakness or decreased strength; and numbness, lack of feeling, or decreased sensation. The Veteran has been treated with gabapentin medication for his neurologic symptoms including pain, numbness, and tingling since at least May 2012. See, e.g., Veteran statements in June 2009, May 2010, October 2011, December 2013, July 2015, January 2016, December 2016, August 2017 (Board hearing); VA treatment records in March 2009, May 2010, July 2010, May 2012, October 2012, June 2014, September 2017, October 2019; private treatment records in March 2016 and March 2018; VA examinations in August 2010, July 2015, October 2019, and (January 2020 report).

Because the Veteran continued to have significant pain and other neurologic symptoms despite medication, the ameliorative effect of such treatment does not result in improved function. In other words, taking away the improving effects of his medication does not result in a higher severity level to warrant a higher rating. 

Prior to October 31, 2019, the Veteran’s sciatic radiculopathies manifested by no more than moderate incomplete paralysis of the sciatic nerve. Although his symptoms increased or decreased at times, the changes were not sufficient to show an increase to moderately severe or higher for a distinct period prior to October 31, 2019, or to severe incomplete paralysis or complete paralysis after that point.

Specifically, the Veteran complained of shooting pains down the legs or with ambulating, but he primarily complained of numbness or tingling, which is discussed below. He described his bilateral lower extremity pain as constant or intermittent and moderate or severe both before and after October 31, 2019. See, e.g., statements in June 2009, May 2010, August 2017 (Board hearing); VA treatment records in June 2014, September 2017; VA examinations in July 2015, October 2019 (January 2020 reports for peripheral neuropathy and spine). 

The severity of pain alone does not rise to the level of moderately severe or severe incomplete paralysis of the sciatic nerve to warrant a higher rating than 20 percent.

Concerning sensory disturbances, throughout the appeal period, the Veteran generally reported noticing feelings of numbness and tingling, burning, or pricking in the lower legs and feet, as well as the buttocks and upper legs at times. The Veteran described his paresthesias and/or dysesthesias and numbness as severe in 2015 and 2019. Testing showed intermittently decreased or absent sensation at various levels, with more levels decreased and absent as of October 31, 2019. 

A March 2009 VA treatment record noted that the Veteran denied tingling or numbness in the feet. An August 2009 private record found intact sensation to light touch. A July 2010 VA treatment record noted that the Veteran complained of numbness in the feet, but denied radiation of back pain or paresthesias. The provider found intact sensation except for impaired (decreased) sensation to pinprick at the ankles. An August 2010 VA examination noted complaints of numbness and paresthesias. Testing showed bilaterally decreased sensation to pain or pinprick and light touch at the foot, but normal vibration and position sense. 

A May 2012 VA treatment record noted complaints of numbness or tingling in the feet, and testing showed decreased sensation to light touch in the lower legs and feet. An October 2012 VA treatment record noted the Veteran’s report of feeling completely numb in the feet for 6 to 7 years, which was slowly getting worse. Sensory response to vibratory sense and light touch were inconsistent in the feet. 

A June 2014 VA podiatry record noted complaints of paresthesias (burning, numbness, tingling, prickling). Sensory examination in the feet was intact to light touch, but absent to sharp/dull, vibratory, and monofilament testing bilaterally. 

In July 2015, VA examination reports for the spine and peripheral neuropathy noted complaints of severe paresthesias and/or dysesthesias and numbness bilaterally. Sensory testing was decreased at the thigh/knee, lower leg/ankle, and foot/toes.

An October 15, 2019, VA podiatry record noted complaints of little feeling in the feet, and testing showed decreased sensation to monofilament bilaterally.

VA examinations on October 31, 2019 (January 2020 reports) for the spine and peripheral neuropathy again noted complaints of severe paresthesias and/or dysesthesias and numbness bilaterally. Sensation for light touch or monofilament was decreased at the ankle/lower leg and absent at the foot/toes. There was decreased position sense, and absent vibration sense absent and cold sensation.

Concerning motor strength or muscle weakness, the Veteran reported difficulty walking and weakness. He used ankle and knee braces, high-top boots, and a cane at times; however, he generally reported these as being due to his knee disabilities with instability or giving way. See, e.g., statements in May 2010, May 2011, October 2011, August 2012, January 2016, July 2015; VA treatment records in December 2012, September 2013, September 2017; private treatment record in March 2018; VA examinations in July 2015, October 2019 (January 2020 reports). 

Testing generally reflects no muscle atrophy, but intermittently decreased motor strength or weakness, with more of a decrease as of October 31, 2019.

A June 2010 VA treatment record noted complaints of knee or leg weakness and found mild quadriceps atrophy at the right knee. A July 2010 VA treatment record also noted the complaints of weakness in the legs, difficulty walking, and needing to use a cane, but found 5 out of 5 strength in the lower extremities. The August 2010 VA examination found normal muscle tone and normal or 5 out of 5 strength. A March 2011 VA treatment record and letter on the same date noted weak muscles or poor quadriceps tone beneath the Veteran’s knee braces, right side worse than left. A May 2011 VA examination again noted bilateral weakness of the quadriceps muscle of the thigh, and an antalgic gait with poor propulsion. Thereafter, an October 2012 VA neurologic consult found normal muscle strength and tone.

In July 2015, VA examination reports for the spine and peripheral neuropathy found no muscle atrophy and 5 out of 5 strength at the hips, knees, ankles, and toes; except for a slight decrease of 4 out of 5 for right ankle dorsiflexion. A September 2017 VA treatment record found strength of 5+ bilaterally. An October 15, 2019, VA podiatry record also found normal muscle strength bilaterally. 

VA examinations on October 31, 2019, for the spine and peripheral neuropathy (January 2020 reports) found no muscle atrophy, but bilaterally decreased motor strength to 4 out of 5 for hip flexion, ankle plantar flexion, ankle dorsiflexion, and great toe extension; and 3 out 5 for knee extension and flexion. 

Concerning reflexes, the evidence reflects normal or 2+ deep tendon reflexes at the knees and ankles, except for notations in the July 2015 VA examination reports for the spine and peripheral neuropathy of 1+ at the left knee. The Veteran had full reflexes before and after that point, including in 2009 and on October 31, 2019.

As discussed above in rating the bilateral knee disabilities, the Veteran had limited knee strength and movement related to the separately service-connected knee disabilities with instability and pain or painful motion. Therefore, a higher rating for sciatic nerve impairment solely based on reduced knee strength or reduced knee reflexes at times cannot be supported without impermissible pyramiding.

VA examiners in July 2015 and October 31, 2019 (January 2020 reports) also noted trophic changes of smooth shiny skin and loss of hair on the lower legs and/or feet. 

Overall, the July 2015 VA spine and peripheral neuropathy examination reports summarized that the Veteran had moderate incomplete paralysis of the sciatic nerve. This included his subjective complaints of severe constant or intermittent pain, paresthesias and/or dysesthesias (including tingling), and numbness; along with the objective findings as to sensation, strength, and reflexes based on testing. 

Although the examiners’ conclusions as to the overall degree of severity is not determinative, the Board agrees that the Veteran’s impairment amounted to no more than moderate incomplete paralysis prior to October 31, 2019. As summarized above, he had moderate or severe subjective complaints of lack of feeling or sensation, tingling or other abnormal sensations, and weakness. Testing showed only intermittent slight decreases in muscle or motor strength to 4 out of 5 at some but not all levels, with intermittent deceases in muscle tone or weakness for the quadriceps. The Veteran also had only intermittent decreases in sensation at some but not all levels, with one episode of absent sensation in 2014, but subsequently improved sensation to decreased or full sensation. He had normal reflexes except for a decrease in the left knee in 2015, which returned to normal.

The evidence reflects a higher degree of no more than moderately severe incomplete paralysis as of October 31, 2019. The October 2019 VA spine examiner (January 2020 report) stated that the Veteran had overall moderately severe incomplete paralysis of the sciatic nerve. Although the January 2020 report for peripheral neuropathy based on an October 31, 2019 examination date stated that there was severe incomplete paralysis, that determination is not dispositive. 

As summarized above, the Veteran had additional decreases and absent sensory testing, as well as additional decreases in motor or muscle strength to 4 out 5 at multiple levels, as of the October 31, 2019, VA examination. Approximately two weeks earlier, on October 15, 2019, a treatment record found normal reflexes and muscle strength, and decreased (but not absent) sensation. Therefore, an increase to moderately severe was not factually ascertainable prior to October 31, 2019. See 38 C.F.R. § 3.400. The Veteran’s decrease of strength in the knees to 3 out of 5 noted on October 31, 2019, is contemplated by his separate knee instability ratings. As the Veteran had no muscle atrophy, and he continued to have full reflexes and decreased (but not absent) sensation at several levels, the Board finds that he did not have severe incomplete paralysis. There is also no suggestion that either foot dangled or dropped, and he retained significant active movement of the muscles below his knee. Thus, he did not have complete paralysis of the sciatic nerve. 

These degrees of impairment warrant the assigned 20 percent rating for each lower extremity under DC 8520 prior to October 31, 2019, and 40 percent thereafter. 

In summary, the Veteran’s lower extremity neurologic impairments were relatively stable during the staged periods on appeal. Any increases in severity were not sufficient to more nearly approximate the criteria for the next higher rating at any point. Thus, the preponderance of the evidence is against an increased rating, there is no reasonable doubt to resolve in the Veteran’s favor, and the appeals are denied.

17. Entitlement to a TDIU

As discussed further below, the Veteran seeks a TDIU because he has significant mental and physical impairments due to his service-connected disabilities. Although he has been working the majority of the time, he has difficulty finding jobs at times and feels that at some point he will no longer be able to work. 

The prior Board remand did not include specific remand directives as to a TDIU, but this issue was readjudicated as intertwined with the other remanded issues.

A TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, a schedular percentage threshold must be met. If there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. However, VA may still grant TDIU on an extraschedular basis if this threshold is not met if the evidence shows unemployability due to service-connected disabilities. 38 C.F.R. § 4.16.

In determining unemployability, there is an economic component, which includes whether any employment was marginal, and a non-economic component, which includes mental and physical capacity based on occupational history, education, skills, and training. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Consideration should be given to the claimant’s prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Gleicher v. Derwinski, 2 Vet. App. 26 (1991); Pederson v. McDonald, 27 Vet. App. 276 (2015). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). 

All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

In this case, the Veteran is currently rated 100 percent disabled for his mental health disorder, effective since March 6, 2018. There is no argument or indication that he has been unemployable at any point during the appeal period without consideration of his mental health disorder. Moreover, the Veteran has already been awarded special monthly compensation (SMC) based on having one disability rated 100 percent and additional disabilities rated 60 percent or more, effective since March 6, 2018. See 38 U.S.C. § 1114; 38 C.F.R. § 3.350. Therefore, the question of entitlement to a TDIU is moot since March 6, 2018. Cf. Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008).

While the Veteran’s appeal for entitlement to a TDIU was pending, he was awarded service connection for several conditions. He meets the schedular threshold criteria for a TDIU, effective since December 23, 2009. The Veteran had one disability rated at least 40 percent disabling, when considering his low back disability rated 20 percent together with his associated bilateral lower extremity sciatic nerve radiculopathy rated 20 percent each, which combined to 50 percent. See 38 C.F.R. §§ 4.25, 4.26, 4.16(a). Additional disabilities combined to 70 percent or more. 

Specifically, the Veteran has had compensable ratings (10 percent or more) for his bilateral knee disabilities, effective since 1994; back disability, effective since 1994; bilateral lower extremity radiculopathies, effective since June 2, 2009; peripheral vestibular disorder (dizziness), effective since December 23, 2009; mood disorder, effective since July 26, 2010; and bilateral upper extremity nerve impairment (including right and left hand pain and numbness), effective since July 20, 2015. The Veteran is also service-connected for noncompensable (0 percent) disabilities of tinea cruris (a skin condition), effective since 1994; and right knee scars status post arthroscopic surgery, effective since September 1, 2010. 

In his July 2010 formal TDIU claim (VA Form 21-8940), the Veteran reported that he last worked full-time in July 2008 and that he became too disabled to work in November 2006. He reported working in jobs between 1997 and 2008 as a project manager and in avionics or upholstery for aviation companies, and that he had applied for multiple positions unsuccessfully since 1996 and since 2006, during which time he was limited by his disabilities for multiple industries. The Veteran described education or training as an aviation structural mechanic and microwave communications electronic repairman during service from 1982 through 1994, as well as four years of college with associates’ degrees in 1989, 1994, and 2004.

Previously, in a July 2007 correspondence, the Veteran stated that his job was physically demanding, and he had to change fields or jobs, as well as that the nature of the aviation industry is generally unstable jobs or layoffs. He stated that he worked in multiple shops because he had skills for almost all departments and was trying to find a position that he could physically withstand. The Veteran reported that he struggled to go to work and had missed days due to pain, which affected his job evaluations, and he needed to work twice as hard as others.

In September 2007 VA examinations, the Veteran reported that he quit his prior aviation job in November 2006 due to back and knee pain because he could no longer climb into small spaces and bend over as required to install avionics.

In a December 23, 2009, correspondence, the Veteran described problems finding a job, but he stated that he was still working and had missed days due to disabilities. A May 2010 correspondence also described problems finding work due to pain and other impairments primarily from service-connected disabilities. During an August 2010 VA examination, the Veteran reported that he was unemployed, his usual occupation was a project manager over aircraft, and he had been laid off and it was hard to find a job due to his service-connected back and joint disabilities (knees). 

In October 2010, a VA examiner opined that the Veteran's musculoskeletal disabilities should not preclude employment that is other than marginal without a requirement for heavy lifting or prolonged walking. The examiner noted that the Veteran may retain the capacity to perform sedentary work that provides for a sit/stand option, without required heavy lifting or prolonged bending, walking, or standing, but medication side effects such as drowsiness should be considered. The examiner stated that due to his inability to be relieved of chronic pain and due to daily medication usage, the Veteran was unlikely to be able to sustain concentration and the persistence required to complete the ordinary tasks of a job in an eight-hour day, for five days for 40 hours per week. The examiner noted that the Veteran has joint and back problems, but he was fairly mobile with a cane and braces, and he had four years of college or training and should be able to find a job where is able to sit/stand and does not involve the indicated heavy lifting, etc.

Although this examiner’s opinion as to employability is not determinative, the summary of the impacts of the Veteran’s service-connected disabilities on occupational-type tasks is generally consistent with the other lay and medical evidence. The Veteran has significant mental and physical impairments due to service-connected disabilities. He has decreased productivity and concentration due to fatigue or drowsiness, as well as due to physical impairments and being unable to sit for long periods due to pain and stiffness. The Veteran has conflicts with coworkers or supervisors at times due at least in part to his mood disorder. He is unable to perform certain tasks or sit for prolonged periods without increased pain, stiffness, and a sensation of numbness in the legs or feet and hands. The Veteran generally has a constant level of pain despite pain medications, and he misses work at times due to service-connected physical and mental disabilities. See, e.g., VA examinations in May 2011, July 2015; private treatment or evaluation in March 2016, April 2017, September 2017; Veteran statements for claim in October 2011 (VA Form 9 and statement in support), May 2013, December 2013, January 2016, December 2016 (VA Form 9); Board hearing in August 2017.

Nevertheless, the Veteran retained significant mental and physical capacity, which allowed him to be employed full-time for the majority of the appeal period. 

In addition to the above notations as to his employment from 2007 through 2010, during a May 2011 VA knee examination, the Veteran reported that he was currently employed full-time for less than a year as an accountant. He had a special disability classification to have a copier access near his workspace. In an October 2011 statement in support, the Veteran stated that he was working 8 hours a day. 

In a May 2013 statement in support, the Veteran stated that he was still working. In a December 2013 statement in support, the Veteran reported that he believed being unable to stretch or move and being required to sit at his desk for two hours had impaired his annual review “to the point of unemployability,” in that he could not work with this restriction but he could work otherwise. He reported that he was attending school and looking for another job while he was still working.

A March 2016 private treatment record noted that the Veteran reported chronic pain almost continuously, that he was unable to work for approximately one year in the past, he had a work injury in January 2015, and he was unable to work lately.

In a December 2016 VA Form 9, the Veteran reported that he had an ergonomic desk or workstation to be able go from sitting to standing.

An April 2017 private mental health evaluation stated that the Veteran had been employed for the past five years. The examiner noted an extensive educational history, including five degrees with an associates’ degree in airframe and aviation maintenance tech, and a bachelor’s degree in psychology and sociology.

A September 2017 private treatment record noted that the Veteran was employed as a human relations caseworker, and he was working previously as an accountant, but he had difficulties with his supervisor and liked his current position better. Another September 2017 private record noted that he had an adjustable desk.

During his August 2017 Board hearing, the Veteran testified that he was still working, and he received disability accommodations. He felt that at some point it would be too much for him to work “without feeling like a truck ran me over.”

As noted above, the Veteran is rated 100 percent for his mental health disorder, effective since March 6, 2018. Even since that date, the Veteran has been employed at times. An August 2019 private treatment record stated that he was unemployed. A January 2020 report based on an October 31, 2019, VA examination for the knees recorded that impact the Veteran’s ability to perform occupational tasks, regardless of whether he was employed, included an “inability to produce income” because pain or discomfort inhibits performing work-related tasks. In contrast, a January 2020 VA treatment record noted that he was still working full-time. 

Although the Veteran had some periods of unemployment during the appeal period, the mere fact of unemployment or difficulty obtaining employment does not show unemployability for TDIU purposes. As summarized above, the Veteran retained significant mental and physical capacity during and after these temporary periods of unemployment, and he has significant educational and occupational history with a variety of skills and accomplishments. There is no argument or indication that the Veteran’s employment was marginal in nature, based on his earnings or otherwise. Although the Veteran received reasonable disability accommodations at some of his jobs, these do not amount to a protected or sheltered work environment. Indeed, the Veteran indicated that his jobs were demanding and his performance evaluations were affected at times by the effects of his disability impairments.

In summary, the preponderance of the evidence is against a finding that the Veteran is unemployable due to service-connected disabilities to warrant a TDIU. There is no reasonable doubt to resolve in the Veteran’s favor, and the appeal is denied.

 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Wheatley

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.