Citation Nr: 21026112
Decision Date: 04/29/21	Archive Date: 04/29/21

DOCKET NO. 12-17 925A
DATE: April 29, 2021

ORDER

A rating in excess of 10 percent for patellofemoral syndrome (PFS) with degenerative changes of the left knee is denied.

Subject to the laws and regulations governing the award of VA monetary benefits, a separate 20 percent rating, but no more, for a left knee meniscal condition from August 18, 2008, is granted.

A rating in excess of 10 percent for PFS with degenerative changes of the right knee is denied.

A rating in excess of 20 percent for degenerative disc disease (DDD) of the cervical spine is denied.

Subject to the laws and regulations governing the award of VA monetary benefits, a 20 percent rating, but no more, for cervical radiculopathy, left upper extremity (LUE), from February 22, 2008, to June 9, 2016, is granted.

A rating in excess of 30 percent for cervical radiculopathy, LUE, from June 9, 2016, is denied.  

Subject to the laws and regulations governing the award of VA monetary benefits, a 30 percent rating, but no more, for migraine headaches, including migraine variants with tension headaches, from August 19, 2008, to January 28, 2011, is granted.

Subject to the laws and regulations governing the award of VA monetary benefits, a 50 percent rating for migraine headaches, including migraine variants with tension headaches, from January 28, 2011, but no earlier, is granted.

An effective date of August 19, 2008, but no earlier, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted.

FINDINGS OF FACT

1. Throughout the entire appeal period, flexion and extension in the Veteran’s left knee were not limited to a compensable degree, including upon clinical examination or as determined to result after repeated use over time or during flare-ups, and she had no incapacitating exacerbations.

2. Throughout the entire appeal period, the Veteran’s left knee meniscal condition resulted in frequent episodes of locking, pain, and effusion.  

3. Throughout the entire appeal period, flexion and extension in the Veteran’s right knee were not limited to a compensable degree, including upon clinical examination or as determined to result after repeated use over time or during flare-ups, and she had no incapacitating exacerbations.

4. Throughout the entire appeal period, forward flexion of the Veteran’s cervical spine has not been limited to 15 degrees, including upon clinical examination or as determined to result after repeated use over time or during flare-ups, and there was no evidence of favorable ankylosis or the functional limitation equivalence of ankylosis; additionally, there was no evidence of incapacitating episodes lasting at least 4 weeks in duration.  

5. Since the February 22, 2008, claim for an increased rating for cervical spine DDD, cervical radiculopathy has been present in the LUE involving the upper radicular group.  

6. From February 22, 2008, to June 9, 2016, the Veteran’s LUE cervical radiculopathy was, at worst, mild in severity.

7. From June 9, 2016, the Veteran’s LUE cervical radiculopathy was, at worst, moderate in severity.

8. From August 19, 2008, to January 28, 2011, the Veteran’s migraine headaches resulted in characteristic prostrating attacks occurring on an average once a month.

9. From January 28, 2011, the Veteran’s migraine headaches resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

10. From August 19, 2008, the Veteran’s service-connected disabilities rendered her unable to obtain and maintain substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for PFS with degenerative changes of the left knee have not been met.  38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5009-5010.

2. The criteria for a separate 20 percent rating, but no more, for a left knee meniscal condition from August 18, 2008, have been met.  38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5258.

3. The criteria for a rating in excess of 10 percent for PFS with degenerative changes of the right knee have not been met.  38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5010-5261.

4. The criteria for a rating in excess of 20 percent for DDD of the cervical spine have not been met.  38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5242.

5. The criteria for a 20 percent rating, but no more, for cervical radiculopathy, LUE, from February 22, 2008, to June 9, 2016, have been met.  38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.124a, DC 8510.

6. The criteria for a rating in excess of 30 percent for cervical radiculopathy, LUE, from June 9, 2016, have not been met.  38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.124a, DC 8510.

7. The criteria for a 30 percent rating, but no more, for migraine headaches, including migraine variants with tension headaches, from August 19, 2008, to January 28, 2011, have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.14, 4.124a, DC 8100.

8. The criteria for a 50 percent rating for migraine headaches, including migraine variants with tension headaches, from January 28, 2011, but no earlier, have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.14, 4.124a, DC 8100.

9. The criteria for an effective date of August 19, 2008, but no earlier, for the award of a TDIU is granted.  38 U.S.C. §§ 1155, 5103(a), 5107(b) (2012); 38 C.F.R. §§ 3.341, 4.16, 4.25.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from April 1989 to November 1999.

These matters were most recently before the Board in July 2018 at which time they were remanded for further evidentiary development.  Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claims.  See Stegall v. West, 11 Vet. App. 268 (1998).  

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition.  See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his symptoms.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  

Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.

Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592.  Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss.  Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017).

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).  

VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran.  In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation.  If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change.  The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.  

VA thus must consider the claims for a higher rating pursuant to the former and revised regulations during the latter part of this appeal.  See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).  Therefore, the Board will consider the Veteran’s claims under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021.  The criteria that is more favorable to the Veteran will be applied.  

The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the AOJ.  In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)).  Id. at 1349.  As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claims.

1. Bilateral Knee Disabilities

Service connection for the Veteran’s left knee disability was granted at 10 percent disabling, effective October 20, 1999, under 38 C.F.R. § 4.71a, DC 5099-5010, in an April 2000 rating decision.  Service connection for his right knee disability was granted at 10 percent disabling, effective November 20, 1999, under 38 C.F.R. § 4.71a, DC 5010-5261, in the same decision.  On February 22, 2008, the Veteran submitted a claim for increase for the right knee disability.  On August 19, 2008, she submitted a claim for increase for the left knee disability.  Thus, the Board will consider the severity of the right knee disability from February 22, 2008, and the left knee disability from August 19, 2008, as well as whether there was a factually ascertainable increase in severity within the year preceding the increased rating claims.  See 38 C.F.R. § 3.400(o)(2).  

Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating, with the first code representing the underlying condition and the second code representing the residuals.  38 C.F.R. § 4.27.  Here, the hyphenated diagnostic codes indicate that the left knee disability is rated by analogy based on traumatic arthritis and the right knee disability is rated based on evidence of traumatic arthritis with limited extension.  

Under the pre-amended criteria, DC 5010 provides that traumatic arthritis as shown by x-ray studies is rated based on limitation of motion of the affected joint.  38 C.F.R. § 4.71a, DC 5010.  When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.  A rating of 20 percent may be applied where there are occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, DCs 5003, 2010.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.

Effective February 7, 2021, DC 5010 was amended to provide that post-traumatic arthritis is to be rated based on limitation of motion, dislocation, or other specified instability under the affected joint.  If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25.

Under DC 5261, extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling.  

Also relevant to any discussion of knee disabilities are the criteria under Diagnostic Codes 5256 through 5263.  38 C.F.R. § 4.71a. 

Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating.

Under the pre-amended criteria, DC 5257 provides that slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating.  

Effective February 7, 2021, DC 5257 was amended to provide ratings for recurrent subluxation or lateral instability.  A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.  A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  DC 5257 also provides for ratings based on patellar instability.  A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.  A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker.   A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker.  Note [1] to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.  Note [2] to DC 5257 states that 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.  

Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint.  

Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage.  

Under DC 5260, flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling.  

Under the pre-amended criteria, DC 5262 provides that a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability.  A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability.  A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability.  A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace.  

Effective February 7, 2021, DC 5262 is amended to provide for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring brace.  Malunion of the tibia and fibula are to be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee or 5270 or 5271 for the ankle, whichever results in the highest evaluation.  

Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated).

Effective February 7, 2021, separate ratings are also provided for medial tibial stress syndrome (MTSS) or shin splints.  

Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion.  38 C.F.R. § 4.71, Plate II.

Turning to the evidence of record, in June 2007, an MRI of the Veteran’s right knee demonstrated no evidence of internal derangement, soft tissues were within normal limits, and there was a tiny amount of joint fluid.  

The Veteran underwent a VA examination in April 2008.  It was noted that she had no constitutional symptoms or incapacitating episodes of arthritis.  The Veteran was able to walk more than one-quarter of a mile but less than one mile.  No assistive aids were needed for walking.  There was no deformity in either knee nor episodes of dislocation or subluxation.  Instability, pain, stiffness, and weakness were reported bilaterally.  Locking episodes occurred one to three times per month in each knee and effusions occurred repeatedly in each knee.  The Veteran described flare-ups in her knees that were moderate and occurring every 1 to 2 months, lasting 1 to 2 days, and resulting in warmth swelling, and tenderness.  Her impression of the effects of flare-ups included trouble with directing an exercise program with work clients and going up and down stairs.  The left knee demonstrated active and passive flexion from 0 to 130 degrees and extension to 0 degrees.  The right knee demonstrated active flexion from 0 to 110 degrees, passive flexion from 0 to 115 degrees, active extension to -10 degrees, and passive extension to -5 degrees.  Tenderness was noted in the knees but no crepitation, clicking or snapping, grinding, instability, or patellar or meniscus abnormality.  There was no ankylosis.  The bilateral knee disabilities resulted in severe effects on sports and recreation; moderate effects on chores, shopping, exercise, traveling, and dressing; and no effects on feeding, bathing, toileting, and grooming.  

An August 2008 MRI of the Veteran’s left knee revealed a medial meniscal tear.  There was no effusion.  An October 2008 VA treatment record noted that the Veteran’s left knee did not have a clear meniscus tear but had synovitis with an effusion.  She described pain when kneeling or putting pressure on the knee and swelling with usual activities.  

Another examination was conducted in January 2009.  The examiner indicated that the left knee had no deformity, giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes, effusions, symptoms of inflammation, or flare-ups.  There were no constitutional symptoms or incapacitating episodes of arthritis.  Standing limitations included an ability to stand 3 to 8 hours with only short rest periods and walking limitations including an ability to walk 1 to 3 miles.  Gait was normal.  Range of motion in the left knee was flexion from 0 to 125 degrees and extension was to 0 degrees.  There was no evidence of pain with active motion.  Right knee flexion was from 0 to 125 degrees and extension was to 0 degrees.  There was no additional limitation with repetitive motion.  No ankylosis was observed bilaterally.  The examiner noted that the ligaments were stable in the knees bilaterally but the compression test on the left knee was positive, suggesting a meniscal tear.  The functional impact of the bilateral knee disabilities was determined to be decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness and fatigue, decreased strength, and pain.  The effects on usual daily activities included severe effects on exercise and recreation, moderate effects on chores, shopping, and traveling, mild effects on driving, and no effects on feeding, bathing, dressing, toileting, and grooming.  Sports were prevented.  The examiner noted that the Veteran had difficulty with manual transmission cars and entering and exiting vehicles due to left knee pain.  

The Veteran underwent another VA examination in September 2010.  She reported intermittent episodes of right knee swelling, popping, and grinding and aching in her left knee.  The examiner indicated that there was no deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes, effusions, inflammation, or flare-ups bilaterally.  There was pain in both knees.  There were no constitutional symptoms or incapacitating episodes of arthritis.  Standing limitations included an ability to stand 3 to 8 hours with short rest periods and functional limitations included an ability to walk 1 to 3 miles.  The Veteran’s gait was normal, and no assistive devices were needed.  There was no crepitation, clicking or snapping, grinding, instability, patellar or meniscus abnormality, or other knee abnormalities.  Range of motion in the left knee was 0 to 140 degrees in flexion and 0 degrees in extension.  The right knee had flexion from 0 to 140 degrees and extension to 0 degrees.  There was no objective evidence of pain bilaterally.  There was no additional limitation after repetitive motion testing.  The effects of the Veteran’s bilateral knee disabilities included moderate effects on sports and no effects on chores, shopping, exercise, recreation, traveling, feeding, bathing, dressing, toileting, grooming, and driving.  

Another examination was conducted in January 2011.  The Veteran reported symptoms of weakness, stiffness, swelling, heat, giving way, locking, fatigability, tenderness, and pain.  She did not experience redness, lack of endurance, deformity, drainage, effusion, subluxation, and dislocation.  The Veteran described flare-ups as often as 3 times per week, lasting for 1 day.  The pain severity was stated to be 9 out of 10.  During flare-ups, she experienced pain and difficulty with bending, walking, stair-climbing, standing, and walking.  She had no incapacitation in the past 12 months.  The following overall functional impairment was noted to be difficulty with stairs, walking, bending, kneeling, and sitting greater than 1 hour.  The examiner observed edema and tenderness in the right knee.  There were no signs of instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, and subluxation.  In the left knee, there was tenderness but no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, and no subluxation.  There was crepitus but no genu recurvatum, locking pain, or ankylosis in the bilateral knees.  Bilateral flexion was to 110 degrees with pain and extension was to 0 degrees with pain.  There was no additional loss of function with repetitive motion in either knee.  The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test, and the medial/lateral meniscus stability test were all within normal limits in the bilateral knees.  The examiner stated that objective factors in the left knee were tenderness, crepitus, and decreased painful range of motion.  Objective factors in the right knee were edema, tenderness, decreased painful range of motion, and crepitus.  

An effusion in the right knee was noted in July 2011.  A cane was ordered for the Veteran by VA clinicians.  In a December 2014 record, she stated that her left knee recently buckled under her.  A bilateral knee x-ray demonstrated no acute fractures or dislocation; patellar enthesopathy bilaterally, slightly more prominent on the right side; tiny osteophyte at the superior pole of the left patella; corticated density by the proximal right fibula possibly related to remote trauma; no significant degenerative change or joint effusion bilaterally; and unremarkable soft tissues.  

The Veteran underwent another VA examination in June 2016.  She denied flare-ups in the knees.  She reported a functional loss of limitations in sitting, standing, and walking.  Range of motion in the bilateral knees included flexion from 0 to 140 degrees and extension from 140 to 0 degrees.  Pain was noted on flexion.  There was objective evidence of moderate pain in the suprapatellar region of the right knee and the entire left knee joint.  There was also pain with weight-bearing.  There was no evidence of crepitus.  The Veteran was able to perform repetitive use testing without additional loss of function or range of motion.  The examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time.  Pain resulted with repetitive use over time.  The examiner was not able to describe additional functional loss in terms of range of motion because the Veteran was not examined after repeated use over a period of time.  The examiner also determined that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups as she denied flare-ups.  Additional contributing factors of disability included disturbance of locomotion, interference with sitting, and interference with standing.  Muscle strength testing was 4 out of 5 in right knee flexion and 5 out of 5 in right knee extension, and left knee flexion and extension.  There was no muscle atrophy.  There was no ankylosis bilaterally.  There was no history of recurrent subluxation, lateral instability, or recurrent effusion in either knee.  Joint stability testing was normal bilaterally.  There were no meniscal conditions in the right knee.  In the left knee, the previous left meniscus tear resulted in frequent episodes of residual joint pain.  No assistive devices were required for the Veteran’s bilateral knee disabilities.  The functional impact was determined to be limitations in sitting, standing, and walking.  

Another examination was conducted in January 2021.  The Veteran reported current symptoms of swelling, pain, buckling, and giving out in her knees.  She described moderate to severe flare-ups in the right knee occurring 3 to 4 times a week lasting 2 to 3 days.  Flare-ups were precipitated by too much standing or walking, upon waking, and sometimes for no reason.  Flare-ups were alleviated by ice, elevating her legs, staying off her legs, Motrin, and use of a heating pad.  Flare-ups in the left knee occurred 3 to 4 times a week lasting all day.  Flare-ups were precipitated by nothing or by too much walking, standing, and bending, and alleviated by elevating her legs, medication, and rest.  Flexion in the right knee was 0 to 110 degrees and extension 110 to 0 degrees.  Flexion in the left knee was 0 to 120 degrees and extension 120 to 0 degrees.  Bilateral pain was noted on examination and caused functional loss.  There was evidence of pain with weight-bearing.  There was no evidence of pain on passive range of motion or with nonweight-bearing in either knee.  There was no evidence of pain on palpation or crepitus.  The Veteran was able to perform repetitive use testing without additional loss of function or range of motion.  The examiner determined that with repetitive use over time and during flare-ups, pain would result and motion would be limited to 0 to 105 degrees in flexion and 105 to 0 degrees in extension in the right knee and 0 to 115 degrees in flexion and 115 to 0 degrees in extension in the left knee.  There were no additional contributing factors of disability.  Muscle strength testing was normal bilaterally and the Veteran had no muscle atrophy.  There was no ankylosis in either knee.  There was no history of recurrent subluxation, lateral instability, or recurrent effusion bilaterally.  Joint stability testing yielded normal results in both knees.  There were no meniscal conditions.  The examiner indicated that the Veteran did not require any assistive devices.  The functional impact was determined to be potential for pain with frequent stair-climbing and prolonged weight-bearing.  

No medical evidence pertaining to the bilateral knees is in the claims file from February 7, 2021.

The Board notes at the outset that the VA examinations of record, taken in conjunction with records of medical treatment, are an adequate basis upon which to determine the extent and severity of the Veteran’s left and right knee disabilities.  Although whether there was pain with passive movement and nonweight-bearing was not elicited on every examination, the Veteran has indicated that she experienced increased pain with prolonged standing, walking, and sitting and with going up and down stairs, suggesting increased pain with active and weight-bearing activities.  As such, active and weight-bearing motion as captured by all examinations is more likely to represent the most severe limitation of motion caused by the disability.  The Veteran denied flare-ups at most examinations.  However, at those she did endorse them (April 2008, January 2011, and January 2021 examinations), she also described the actual functional losses associated with flare-ups (difficulty with directing an exercise program with work clients, bending, walking, stair-climbing, standing, and walking).  As such, the Veteran herself provided ample statements regarding the limitation of her activities from which to extrapolate the extent and severity of her knee disabilities.  Further, the January 2021 examiner determined the additional loss of function in terms of degrees of range of motion during flare-ups.  The Veteran has not suggested that her disabilities improved over time.  As such, the limitation depicted during flare-ups by the January 2021 examiner likely represents the most severe limitation of motion caused by the disabilities during flare-ups.  Likewise, although the June 2016 examiner could not determine additional loss of function in terms of degrees of range of motion after repeated use over time, because no improvement in the Veteran’s disabilities has been contended, the January 2021 examiner’s conclusions likely represent the most severe limitation of motion caused by the disabilities with repeated use over time.  Given the totality of the information, including the Veteran’s own descriptions of her limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed.  DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158.

Additionally, as no relevant medical evidence has been added to the record since February 7, 2021, consideration under the amended criteria is not warranted.  As such, the Board will consider the severity of the Veteran’s bilateral knee disabilities under the pre-amended criteria.

(a.) A rating in excess of 10 percent for PFS with degenerative changes of the left knee.

Based on the foregoing, the Board finds that a rating in excess of 10 percent for left knee PFS with degenerative changes is not warranted.  There is no evidence of incapacitating exacerbations warranting a higher rating under DC 5010.  Further, motion has not been limited to a compensable degree in either flexion or extension, including upon clinical examination or as determined to result after repeated use over time or during flare-ups.  As such, a rating in excess of 10 percent is not warranted under DC 5099-5010 at any point during the appeal period.

(b.) A 20 percent rating, but no more, for a left knee meniscal condition is granted.

However, the Board finds that the Veteran has additional symptomology in his left knee which is not addressed by the 10 percent rating under DC 5099-5010.  The Veteran had evidence of a possible meniscus tear both during service and during the appeal period.  As such, rating the disability under DC 5258 and/or DC 5259 are implicated.  Semilunar cartilage was not removed either in service or post-service.  As such, rating under DC 5259 is not warranted.  The Veteran has consistently had pain in her left knee.  Additionally, locking and buckling of the knee has been reported on multiple occasions.  Effusions have been demonstrated upon several evaluations, as well.  As such, the meniscal condition has resulted in frequent episodes of locking, pain, and effusion into the joint.  Therefore, a 20 percent rating under DC 5258 is warranted throughout the appeal period, stemming from the August 18, 2008, date of claim.  As this represents the maximum rating available under DC 5258 and the Veteran’s recurrent symptoms are contemplated in the rating criteria, a rating in excess of 20 percent is not warranted.

The Board has considered whether rating the left knee disability under additional or alternative diagnostic codes pertaining to the knees would be more appropriate or advantageous to the Veteran.  However, rating under DC 5256 is not indicated as there is no evidence of ankylosis or the functional limitation equivalence of ankylosis.  The Veteran described instability at the April 2008 examination, but instability was not observed upon evaluation.  Subsequent stability testing during the appeal period repeatedly yielded negative results and the Veteran did not use assistive devices to aid in knee stability.  Further there was no evidence of recurrent subluxation.  As such, rating the disability under DC 5257 is not warranted.  Finally, there is no malunion or nonunion of the tibia and fibula and no genu recurvatum indicating rating under DC 5262 and DC 5263.  As such, any additional or alternative ratings are not warranted.  The Board finds that the Veteran’s disability is fully capable of evaluation under the rating schedule.

(c.) A rating in excess of 10 percent for PFS with degenerative changes of the right knee is denied.

Based on the foregoing, the Board finds that a rating in excess of 10 percent for right knee PFS with degenerative changes is not warranted.  There is no evidence of incapacitating exacerbations warranting a higher rating under DC 5010.  Further, motion has not been limited to a compensable degree in either flexion or extension, including upon clinical examination or as determined to result after repeated use over time or during flare-ups.  As such, a rating in excess of 10 percent is not warranted under DC 5010-5261 at any point during the appeal period.

The Board has considered whether rating the right knee disability under additional or alternative diagnostic codes pertaining to the knees would be more appropriate or advantageous to the Veteran.  However, rating under DC 5256 is not indicated as there is no evidence of ankylosis or the functional limitation equivalence of ankylosis.  The Veteran described instability or giving way on occasion, but instability was not observed upon evaluation.  Subsequent stability testing during the appeal period repeatedly yielded negative results and the Veteran did not use assistive devices to aid in knee stability.  Further there was no evidence of recurrent subluxation.  As such, rating the disability under DC 5257 is not warranted.  The Veteran does not have any meniscal conditions warranting rating under DC 5258 or DC 5259.  Finally, there is no malunion or nonunion of the tibia and fibula and no genu recurvatum indicating rating under DC 5262 and DC 5263.  The Board finds that the Veteran’s disability is fully capable of evaluation under the rating schedule.  As such, any additional or alternative ratings are not warranted.  The Board finds that the Veteran’s disability is fully capable of evaluation under the rating schedule.

2. Cervical Spine Disability

Service connection for the Veteran’s cervical spine DDD was granted at 10 percent disabling, effective November 20, 1999, under 38 C.F.R. § 4.71a, DC 5242, in an April 2000 rating decision.  He submitted a claim for increase on February 22, 2008.  In a July 2008 rating decision, the rating was increased to 20 percent, effective February 22, 2008.  The Veteran timely appealed.  Thus, the Board will consider the severity of the cervical spine disability from February 22, 2008, as well as whether there was a factually ascertainable increase in severity within the year preceding the increased rating claims.  See 38 C.F.R. § 3.400(o)(2).  

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes).  Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

Prior to February 7, 2021, DC 5242 was assigned for degenerative arthritis of the spine and DC 5243 for IVDS.  As of February 7, 2021, DC 5242 is assigned for degenerative arthritis and DDD other than IVDS.  It also amends DC 5243 for IVDS, allowing the diagnostic code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise DC 5242 must be used for all other disc diagnoses.  Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating formula under each diagnostic code was unchanged.

The General Rating Formula provides for assignment of a 10 percent rating where forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or there is vertebral fracture with loss of 50 percent or more of the height. 

A 20 percent rating is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine is not greater than 170 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. 

A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or ankylosis of the entire thoracolumbar spine.  

A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine.  

A 100 percent rating requires unfavorable ankylosis of the entire spine. 

For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The normal combined range of motion of the cervical spine is 340 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (2); see also 38 C.F.R. § 4.71a, Plate V (2017).

Alternatively, disability involving disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes.  That formula provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243. 

An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Id. at Note (1).

Turning to the evidence of record, a cervical MRI was conducted in September 2007.  It revealed degenerative disc changes from C4-C5 through C6-C7, canal narrowing at C4-C5 and C5-C6 with mild bilateral neural foraminal narrowing at C4-C5, mild to moderate left-sided foraminal narrowing at C5-C6, and minimal left-sided foraminal narrowing at C6-C7.

In an October 2007 private treatment record, the Veteran described cervical pain at a 10 out of 10.  She received an epidural steroid injection.  In November 2007, the Veteran reported neck pain and noted that she had previously received some limited relief from physical therapy, chiropractic care, and acupuncture.  An MRI revealed reverse lordosis centered around the C5-C6 area, disc desiccation at C5-C6 and C6-C7, and intervertebral disc spaces with no significant canal stenosis.  Another epidural steroid injection was administered.  

The Veteran underwent a VA examination in April 2008.  The examiner indicated a history of fatigue, decreased motion, stiffness, weakness, spasms, and pain.  Pain onset upon awakening daily, and was sharp, moderate, and constant.  There was no history of urinary incontinence, urgency, retention, or frequency; nocturia; fecal incontinence; obstipation; numbness; paresthesias; leg or foot weakness; falls; unsteadiness; or dizziness.  Flare-ups were described as severe, occurring weekly, and lasting for hours.  Functional impairment during flare-ups including an inability to do any household chores or run errands.  One incapacitating episode occurred which the Veteran stated lasted 6 months.  There were no limitations on walking and the Veteran required no assistive devices.  She described trouble sleeping due to a pulling and straining sensation from the cervical spine.  There was no spasm, atrophy, guarding, pain with motion, tenderness, or weakness.  Spinal contour and gait were normal.  A motor examination, sensory examination, and reflex examination yielded normal results and there was no muscle atrophy or ankylosis.  Active and passive flexion, extension, and right and left lateral flexion were from 0 to 30 degrees.  Right lateral rotation was from 0 to 60 degrees and left lateral rotation was from 0 to 40 degrees.  There was no pain on motion or after repetitive use and there was no additional loss of motion on repetitive use.  An x-ray demonstrated increasing degenerative joint disease (DJD) at C5-C6 and DDD at C4-C5 and C6-C7 as compared to prior x-rays.  There was increasing neural foraminal impingement, the greatest at C5-C6 on the left followed by C3-C4 and C5-C6 on the right.  The findings at C5-C6 on the left were moderate in extent.  The effects on usual daily activities were severe effects on chores and traveling, moderate effects on shopping and grooming, and no effects on feeding, bathing, dressing, and toileting.  Exercise, sports, and recreation were prevented.  Her disability also interfered with cooking, cleaning, and grandparenting.  

Private treatment records from November 2008, December 2008, and January 2009 reflected that the Veteran’s cervical spine did not show full range of motion.  Flexion was decreased due to stiffness and pain and all other planes of motion were abnormal and painful.  The cervical spine had a normal appearance and showed no instability.  Gait and stance were normal.  

Another cervical injection was administered in February 2009.  A VA treatment record noted cervical paraspinous/trapezius spasm.  The Veteran underwent physical therapy in March 2009.  An April 2009 private treatment record reflected that the Veteran’s cervical spine did not show full range of motion.  Flexion was decreased due to stiffness and pain and all other planes of motion were abnormal and painful.  The cervical spine had a normal appearance and showed no instability.  Gait and stance were normal.  

An acute neck spasm was diagnosed in July 2009.  An MRI was conducted in October 2009.  It demonstrated DDD most pronounced at C4-5, C5-6 and C6-7 with reversal of cervical lordosis.  Canal narrowing was most pronounced at C4-5.  Bilateral neural foraminal narrowing was noted, most pronounced on the right C4-5 and the left C5-6.  Changes were marginally progressive from the most recent MRI.  

An examination was conducted in September 2010.  The examiner indicated that there was no history of fatigue, decreased motion, and weakness.  There was a history of stiffness and moderate cervical spine pain that was dull and tingling that occurred daily and lasted for hours.  There was no history of urinary incontinence, urgency, retention requiring catheterization, or frequency; nocturia; fecal incontinence; obstipation; numbness; paresthesias; leg or foot weakness; falls; or unsteadiness.  Spinal contour and gait were normal.  The Veteran did not require an assistive device.  There was no ankylosis.  There was no spasm, atrophy, guarding, pain with motion, or weakness, but there was tenderness.  Flexion was from 0 to 40 degrees, extension was from 0 to 35 degrees, left and right lateral flexion was from 0 to 40 degrees, and left and right lateral rotation was from 0 to 75 degrees.  There was no pain following repetitive motion and no additional limitation after repetitive use testing.  A motor examination was normal and there was no muscle atrophy.  The effect on daily activities was determined to be limited overhead work and limited ability to conduct activities involving repetitive flexion, extension, lateral flexion, and lateral rotation.  

The Veteran underwent a VA examination in January 2011.  She reported that that on average she was limited to walking one-quarter of a mile in a half hour due to her cervical spine disability.  She displayed a normal gait.  Her current symptoms included weakness, stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness.  She had no bowel or bladder problems.  Severe pain occurred 5 times per week lasting for 1 day in duration, was localized, exacerbated by physical activity, and relieved by rest.  During flare-ups, the Veteran experienced functional impairment described as turning to the left, driving, and sleeping.  She did not have any incapacitation in the past 12 months.  Upon observation, there was no evidence of radiating pain on movement, guarding, weakness, of loss of tone.  There was muscle spasm which was paraspinal.  Tenderness was noted at C5.  There was no ankylosis.  Forward flexion was to 40 degrees with pain, extension was to 30 degrees with pain, right lateral flexion was to 30 degrees with pain, left lateral flexion was to 25 degrees with pain, and right and left lateral rotation were to 45 degrees with pain.  The Veteran was able to perform repetitive use testing without additional loss of motion.  The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  The examiner diagnosed IVDS and found the objective factors to be cervical spine paraspinal muscle spasms, tenderness, and decreased painful range of motion.  

A cervical x-ray conducted in January 2014 demonstrated reversal of the normal cervical curvature, nonspecific, with muscle spasm and degenerative changes in the mid-cervical spine with ventral osteophytes.  

An epidural steroid injection was administered in January 2015.  A cervical MRI was conducted in May 2015 which demonstrated moderate multilevel degenerative changes, most severe at C5-C6 with compression of the exiting nerve root on the left.  

A June 2015 VA treatment record reflected complaints of daily, constant neck pain.  No scoliosis, kyphosis, or lordosis was observed.  Range of motion was to 45 degrees in forward flexion, to 45 degrees in extension, and 60 degrees in rotation.  Tenderness to palpation was observed in the cervical paraspinal musculature.  The impression was cervical DDD with radiculitis.  Cervical epidural steroid injections were administered in July 2015 and August 2015.  

Another examination was conducted in June 2016.  The Veteran described constant neck pain, treated with Gabapentin, Methocarbamol, and epidural injections.  She denied flare-ups and described the functional impact as limiting head rotation and prolonged sitting.  Forward flexion was to 20 degrees, extension was to 40 degrees, right and left lateral flexion was to 20 degrees, and right and left lateral rotation was to 30 degrees.  Range of motion contributed to a functional loss in that head rotation was limited, impairing the safe operation of driving a vehicle.  Pain was noted on lateral flexion and rotation.  There was mild localized pain in the bilateral cervical paraspinal muscles and pain with weight-bearing.  The Veteran was able to perform repetitive use testing without additional loss of function or range of motion.  The examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time.  Pain would result.  The examiner was not able to determine additional loss of function in terms of range of motion because the Veteran was not examined after repeated use.  There was no muscle spasm on examination, but there was localized tenderness and guarding not resulting in abnormal gait or spinal contour.  There were no additional factors contributing to disability.  Muscle strength testing was normal or with active movement against some resistance.  There was no muscle atrophy.  Reflexes were normal in the bilateral biceps and triceps but hypoactive in the brachioradialis.  A sensory examination was normal in the right upper extremity and decreased in the left upper extremity.  There was no constant pain, intermittent pain, paresthesias/dysesthesias, or numbness in the right upper extremity.  There was moderate constant pain, paresthesias/dysesthesias, and numbness in the left upper extremity involving the C5-C6 nerve roots (upper radicular group) and C7 nerve root (middle radicular group).  There were no other neurological abnormalities.  There was no ankylosis.  IVDS was diagnosed but the Veteran had no incapacitating episodes requiring bed rest in the past 12 months.  She required no assistive devices.    

An MRI conducted in September 2016 revealed multilevel degenerative arthrosis of the cervical spine, worse at C5-C6, with associated left neuroforaminal narrowing and contact of the left exiting nerve root.  A November 2016 MRI demonstrated no significant change since the previous MRI.

The Veteran underwent physical therapy from December 2016 to April 2017.  In December 2016, active range of motion was to 18 degrees in flexion, 15 degrees in extension, 40 degrees in left rotation, 9 degrees in left side-bending, 47 degrees in right rotation, and 11 degrees in right side-bending.  In February 2017, active range of motion was to 30 degrees in flexion, 30 degrees in extension, 57 degrees in left rotation, 20 degrees in left side-bending, 50 degrees in right rotation, and 15 degrees in right side-bending.  It was noted that the Veteran had significant muscle spasms in the bilateral cervical spine region.  

In March 2017, active range of motion was to 17 degrees in flexion, 33 degrees in extension, 68 degrees in left rotation, 12 degrees in left side-bending, 60 degrees in right rotation, and 20 degrees in right side-bending.  Active range of motion in April 2017 was to 20 degrees in flexion, 25 degrees in extension, 59 degrees in left rotation, 12 degrees in left side-bending, 50 degrees in right rotation, and 30 degrees in right side-bending.  Another cervical epidural steroid injection was administered in April 2017.  

The Veteran underwent a VA examination in January 2021.  She described current symptoms of tightness in the head, headaches, neck pain, shoulder pain, difficulty sleeping, arm pain, and numbness in fingers.  Current treatment included stretching on a machine, pressure points, Motrin, and Gabapentin.  The impact was not being able to sit for long periods of time.  The Veteran reported flare-ups that occurred every day, were severe, lasted all day, were precipitated by too much standing or sitting, and were alleviated by laying down, using a cane, and taking medication.  Forward flexion and extension were to 35 degrees, right lateral flexion was to 45 degrees, left lateral flexion was to 30 degrees, and right and left lateral rotation were to 80 degrees.  Pain was noted on examination but did not result in functional loss.  There was no evidence of localized tenderness or pain on palpation.  There was pain with weight-bearing but no pain with nonweight-bearing or on passive range of motion.  The Veteran was able to perform repetitive use testing without additional loss of function or range of motion.  With repeated use over time and during flare-ups, the examiner determined that pain would result and range of motion would be further limited to 30 degrees in forward flexion and extension, 45 degrees in right lateral flexion, 25 degrees in left lateral flexion, and 80 degrees in right and left lateral rotation.  There was no muscle spasm or guarding of the cervical spine observed on examination.  There were no additional factors contributing to disability.  Muscle strength testing was normal and there was no muscle atrophy.  Reflexes and a sensory examination also yielded normal results.  Mild intermittent pain and numbness was reported in the LUE involving the C5-C6 nerve roots (upper radicular group).  There was no ankylosis of the spine and no other neurologic abnormalities related to the cervical spine.  The examiner indicated that the Veteran did not have IVDS or incapacitating episodes.  The Veteran did not require assistive devices.  The examiner determined that the functional impact was the potential for discomfort with repetitive overhead use of the left arm or with repetitive neck movements such as with distance driving.  

The Board notes at the outset that the VA examinations of record, taken in conjunction with records of medical treatment, are an adequate basis upon which to determine the extent and severity of the Veteran’s cervical spine disability.  Although whether there was pain with passive movement and nonweight-bearing was not elicited on every examination, the Veteran has indicated that she experienced increased pain with turning to the left and prolonged driving, suggesting increased pain with active and weight-bearing activities.  As such, active and weight-bearing motion as captured by all examinations is more likely to represent the most severe limitation of motion caused by the disability.  The Veteran denied flare-ups at most examinations.  However, at those she did endorse them (April 2008 and January 2021 examinations), she also described the actual functional losses associated with flare-ups.  As such, the Veteran herself provided statements regarding the limitation of her activities from which to extrapolate the extent and severity of her cervical spine disability.  Further, the January 2021 examiner determined the additional loss of function in terms of degrees of range of motion during flare-ups.  The Veteran has not suggested that her disabilities improved over time.  As such, the limitation depicted during flare-ups by the January 2021 examiner likely represents the most severe limitation of motion caused by the disability during flare-ups.  Likewise, although several examiners could not determine additional loss of function in terms of degrees of range of motion after repeated use over time, because no improvement in the Veteran’s disability has been contended, the January 2021 examiner’s conclusions likely represent the most severe limitation of motion caused by the disability with repeated use over time.  Given the totality of the information, including the Veteran’s own descriptions of her limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed.  DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158.

Additionally, as no relevant medical evidence has been added to the record since February 7, 2021, consideration under the amended criteria is not warranted.  As such, the Board will consider the severity of the Veteran’s cervical spine disability under the pre-amended criteria.

(a.) A rating in excess of 20 percent for DDD of the cervical spine.

Based on the foregoing, the Board finds that a rating in excess of 20 percent for cervical spine DDD is not warranted at any time during the appeal period.  Forward flexion has not been limited to 15 degrees at any point, including upon clinical examination or as determined to result after repeated use over time or during flare-ups.  Indeed, even during intensive physical therapy at which time range of motion was most reduced, flexion was never limited to 15 degrees.  Additionally, there is no evidence of favorable ankylosis of the cervical spine or the functional limitation equivalence of ankylosis.  As such, the criteria for a 30 percent rating under the General Rating Formula have not been met.  Further, there is no evidence of IVDS with incapacitating episodes.  The Veteran reported at the April 2008 examination that she had an incapacitating episode lasting 6 months.  However, the medical record does not support that the Veteran’s cervical spine disability required bed rest prescribed by a physician for 6 months or for any specified timeframe.  As the criteria for an incapacitating episode has not been demonstrated, a higher rating based on the Formula for Rating IVDS is not established.

Accordingly, a rating in excess of 20 percent for DDD of the cervical spine is not warranted.  The Board finds that the Veteran’s disability is fully capable of evaluation under the rating schedule.

The Board has considered whether additional ratings are warranted for the Veteran’s service-connected cervical spine DDD based on any associated objective neurologic abnormalities.  See General Rating Formula for Disease and Injuries of the Spine, Note (1).  However, the Veteran is in receipt of a rating for associated LUE radiculopathy which is discussed below.  There were no indications throughout the record of any associated right upper extremity radiculopathy.  Further, the evidence as outlined above does not identify any other neurological abnormalities associated with the Veteran’s cervical spine disability.  Thus, the Board finds no basis to award any further separate ratings pursuant to Note (1).

3. LUE Radiculopathy

Service connection for LUE cervical radiculopathy was granted at 30 percent disabling, effective June 9, 2016, under 38 C.F.R. § 4.124a, DC 8511, in an April 2018 rating decision as secondary to service-connected cervical DDD.  As Note (1) to the General Rating Formula for Disease and Injuries of the Spine requires evaluation of any associated objective neurologic abnormalities separately, the Board will consider any neurologic manifestations from the date of claim for increase for the cervical spine disability, February 22, 2008.  

The Veteran’s LUE radiculopathy has been described as involving both the upper radicular group and the middle radicular group of peripheral nerves.  DC 8510 pertains to the upper radicular group and DC 8511 pertains to the middle radicular group.  The Veteran’s dominant hand is her right hand.

Under DC 8510, a 20 percent rating is warranted for mild incomplete paralysis of both the minor and major extremities; 30 percent and 40 percent ratings are warranted for moderate incomplete paralysis of the minor and major extremity, respectively; 40 percent and 50 percent ratings are warranted for severe incomplete paralysis of the minor and major extremity, respectively; and 60 percent and 70 percent ratings are warranted for complete paralysis of the minor and major extremity, respectively, with all shoulder and elbow movements lost or severely affected and hand and wrist movements not affected.  Neuritis and neuralgia of that group are evaluated under DC 8610 and 8710.

Under DC 8511, for both the major and minor arms, mild incomplete paralysis warrants a 20 percent evaluation.  Moderate incomplete paralysis warrants a 30 percent rating for the minor arm and a 40 percent rating for the major arm.  Severe incomplete paralysis warrants a 40 percent rating for the minor arm and a 50 percent rating for the major arm.  Complete paralysis, adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected warrants a 60 percent rating for the minor arm and 70 percent rating for the major arm.  Neuritis and neuralgia of that group are evaluated under DC 8611 and DC 8711.

The terms “mild,” “moderate,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just.  38 C.F.R. § 4.6.

A note preceding the rating schedule for diseases of the peripheral nerves states that, “[w]hen the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.”  38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note.  The Court explained that this note “provides only a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve” and does not require a certain minimum disability rating where there are also non-sensory manifestations.  Miller v. Shulkin, 28 Vet. App. 376, 380 (2017).

Turning to the evidence of record, in an October 2007 private treatment record, the Veteran was diagnosed with cervical radiculopathy in the left C6 distribution.  In November 2007, she described numbness and tingling in her left arm and hand but no weakness.  An EMG was conducted in December 2007 which demonstrated mild, subacute left C6 radiculopathy.  The median and ulnar nerves were normal.  

The Veteran underwent a VA cervical spine examination in April 2008.  She reported radiating, tingling pain into both shoulders.  November 2008 and December 2008 private treatment records reflected decreased response to tactile stimulation of the outer upper (C5) aspect of the medial and lateral arm and the radial forearm, thumb, and index finger (C6).  In November 2009, EMG/NCV testing results were consistent with chronic radiculopathy of the left C5-C6 disc space.  Such findings corresponded to cervical MRI results.  The Veteran was diagnosed with cervical neuritis.

A cervical spine examination was conducted in September 2010.  The Veteran again reported radiating dull and tingling pain and numbness, radiating to muscles of the neck and shoulders intermittently.  A sensory examination of the LUE was normal.  

The Veteran underwent a VA examination in January 2011.  Motor function was within normal limits and a sensory examination to pinprick/pain, touch, position, vibration, and temperature was intact in the LUE.  Reflexes were normal in the LUE, as well.  The examiner stated that peripheral nerve involvement was not evident.  However, there was a sensory deficit of the left ear and left posterior temporal (C3), left posterior upper arm and left upper chest (C4), and left lateral shoulder and left upper arm (C5).  The examiner indicated that the most likely peripheral nerves involved were the dorsal scapular nerve, long thoracic nerve, and circumflex nerve.  Objective factors included atrophy of the left arm and decreased sensation in the left arm.  

In March 2011, the Veteran complained of numbness in the left hand.  

Another cervical spine examination was conducted in June 2016.  The Veteran described left arm tingling and numbness all the way to the fingertips at times.  A sensory examination revealed decreased sensation to light touch in the left shoulder area (C5), inner/outer forearm (C6-T1) and hand/fingers (C6-C8).  The Veteran had moderate constant pain, paresthesias/dysesthesias, and numbness in the LUE.  There were no other signs or symptoms of radiculopathy.  The examiner indicated that there was moderate involvement of the C5/C6 nerve roots (upper radicular group) and C7 nerve root (middle radicular group).  There were no other neurologic abnormalities.  

An August 2017 EMG/NCV demonstrated possible left C6 radiculopathy.  

The Veteran underwent a VA cervical spine examination in January 2021.  She reported arm pain and numbness in her fingers.  A sensory examination was normal.  The Veteran had mild intermittent pain, paresthesias/dysesthesias, and numbness in the LUE.  The examiner indicated that there was mild involvement of the C5-C6 nerve roots (upper radicular group).  There were no other neurologic abnormalities related to the cervical spine.

A VA peripheral nerves examination was also conducted in January 2021.  The Veteran described numbness in her fingers and noted that her fingers locked up sometimes.  The impact of the condition was that it was hard to grab things and do things with her fingers.  Relevant symptoms included mild intermittent pain, paresthesias/dysesthesias, and numbness in the LUE.  Muscle strength testing was normal and there was no muscle atrophy.  A reflex examination and sensory examination yielded normal results.  Special tests for the median nerve were all negative.  The examiner indicated that involvement of the upper radicular group (C5-C6) resulted in mild incomplete paralysis.  The Veteran required no assistive devices.  The functional impact was deemed to be potential for pain with repetitive overhead use, such as with painting ceilings.  

An addendum opinion was obtained in February 2021.  The examiner indicated that the November 2016 cervical spine MRI and August 2017 EMG showed pathology at the C5-C6 vertebrae and possible C6 radiculopathy.  As such, the current diagnosis was LUE peripheral neuropathy in the upper radicular group.  The prior diagnosis of involvement of the middle radicular group had resolved or was made in error previously.

(a.) A 20 percent rating, but no more, for cervical radiculopathy, LUE, from February 22, 2008, to June 9, 2016, is granted.

As noted above, the February 22, 2008, increased rating claim for cervical spine DDD encompassed all neurological manifestations of the disability.  Left C6 radiculopathy was diagnosed prior to the claim and EMG evidence has demonstrated ongoing C6 involvement throughout the entire appeal period.  As such, the Board finds that service connection for LUE cervical radiculopathy is warranted as of the date of claim, February 22, 2008.  

Prior to June 9, 2016, the severity of the Veteran’s LUE radiculopathy was characterized as mild.  Further, neurological findings were not present on all evaluations.  As such, the Board finds that the Veteran’s LUE radiculopathy was, at worst, mild in severity prior to June 9, 2016, warranting a 20 percent rating.  As moderate symptomology was not demonstrated, a rating in excess of 20 percent is not warranted.  

Accordingly, a 20 percent rating, but no more, for cervical radiculopathy, LUE, from February 22, 2008, to June 9, 2016, is established.  

The Board notes that although the Veteran’s radiculopathy was originally rated as involving the middle radicular group under 38 C.F.R. § 4.124a, DC 8511, the evidence throughout the entire appeal period reflects involvement of the C6 nerve root, or upper radicular group.  Although the June 2016 examiner noted the involvement of C7, the middle radicular group, no other clinician has noted such involvement upon clinical testing.  As such, the Board attaches significant probative value to the February 2021 addendum opinion, determining that C7 involvement had resolved or been previously made in error.  As such, the Veteran’s LUE radiculopathy is most appropriately rated throughout the entire appeal period under 38 C.F.R. § 4.124a, DC 8510.

(b.) A rating in excess of 30 percent for cervical radiculopathy, LUE, from June 9, 2016, is denied.

The Board finds that a rating in excess of 30 percent for LUE cervical radiculopathy from June 9, 2016, is not warranted.  The severity of the Veteran’s disability was deemed to be moderate by the June 2016 VA examiner.  The subsequent January 2021 examiners found that the disability was mild in severity, indicating an improvement.  However, there is insufficient evidence of sustained improvement such that a reduction in rating is merited.  As such, LUE cervical radiculopathy warrants a rating of 30 percent for moderate incomplete paralysis from June 9, 2016.  At no point has the LUE radiculopathy been characterized as severe in nature, nor has symptomology reflected such an increased level of disability.  As such, a rating in excess of 30 percent for cervical radiculopathy, LUE, from June 9, 2016, is not warranted.  

The Board finds that the Veteran’s disability is fully capable of evaluation under the rating schedule.

4. Migraine Headaches

Service connection for the Veteran’s migraine headaches was granted at 10 percent disabling, effective November 20, 1999, under 38 C.F.R. § 4.124a, DC 8100, in an April 2000 rating decision.  She submitted a claim for increase on August 19, 2008.  In an April 2018 rating decision, the rating was increased to 50 percent, effective June 9, 2016.  As such, the Board will consider whether a rating in excess of 10 percent is warranted from February 22, 2008, as well as whether there was a factually ascertainable increase in severity within the year preceding the increased rating claims, and whether a rating in excess of 50 percent is warranted from June 9, 2016.  See 38 C.F.R. § 3.400(o)(2).  

Migraine headaches are evaluated under 38 C.F.R. § 4.124a, DC 8100.  Under this code, a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months.  Migraine headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation, which is also the maximum evaluation available under this diagnostic code. 

Turning to the evidence of record, the Veteran visited the emergency room in January 2009 with complaints of an occipital headache resulting in vomiting and some intolerance of light.  She noted that such headaches occurred frequently with similar symptomology.  

The Veteran underwent a VA examination in January 2009.  She reported weekly headaches treated with medication.  She had some relief with several hours rest in a dark, quiet place.  Most of the headaches were prostrating and lasted hours.  The examiner determined that the Veteran’s migraine headaches had significant effects on occupation resulting in increased absenteeism.  The effects included decreased concentration, difficulty following instructions, lack of stamina, weakness or fatigue, and pain.  The Veteran reported that she had to stop activities when her headaches flared.  

Another examination was conducted in September 2010.  The Veteran described aching, spastic, and muscular occipital headaches.  Medications taken for her cervical spine pain alleviated her headaches.  She experienced on average two headache episodes per week with less than half of the attacks being prostrating.  The headaches were not treated with continuous medication but improved approximately one hour after taking pain medication.  She was also able to resume her daily activities after taking medication, including Morphine, Tizanidine, and Ibuprofen.  The usual duration of headaches was hours.  

The Veteran underwent a VA examination in January 2011.  She described her headaches as severe, starting at the base of the neck and sometimes across the forehead.  She experienced no nausea, vomiting, or light or sound sensitivity.  When headaches occurred, the Veteran had to stay in bed and was unable to do anything.  She described a level of severity of 10 out of 10.  Headaches occurred on average 5 times per week, lasting 1 day in duration.  Treatment included Morphine, Meloxicam, Tizanidine, and Gabapentin.  

In a May 2016 private treatment record, the Veteran reported three continuous days of a migraine headache.  

Another examination was conducted in June 2016.  The Veteran reported constant tension headaches and also migraine headaches that occurred every day, lasting a few hours.  The migraines would not always go away but decreased to a level that allowed her to function.  She noted that the previous month, she was in the emergency room three times due to headache pain.  She was placed on Maxalt which did not help.  Symptoms included constant head pain in the front and back of the head, nausea, and sensitivity to light and sound lasting less than one day.  The examiner indicated that the Veteran had characteristic prostrating attacks of migraine headache pain occurring more frequently than once per month and very frequent prostrating and prolonged attacks of migraine headache pain.  She also experienced prostrating attacks of non-migraine headache pain more frequently than once per month and very frequent prostrating and prolonged attacks of non-migraine headache pain.  The examiner indicated that the Veteran had headache pain each day that hindered all activities of daily living.  As such, the Veteran’s disability resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  

In a July 2016 VA treatment record, the Veteran stated that she had headaches almost daily.

(a.) A 30 percent rating, but no more, for migraine headaches, including migraine variants with tension headaches, from August 19, 2008, to January 28, 2011, is granted.

Based on the foregoing, the Board finds that a 30 percent rating for the Veteran’s migraine headaches is warranted from August 19, 2008, to January 28, 2011.  During that timeframe, the Veteran experienced headaches which required her to rest in a dark room for several hours until medication alleviated her symptoms.  Such prostrating attacks occurred weekly or less than weekly.  The Board finds that such symptomology approximates migraines with characteristic prostrating attacks occurring on an average once a month over the last several months, warranting a 30 percent rating under DC 8100.  However, the frequency and severity of symptoms was not such that the criteria of a 50 percent rating were met as they were not very frequent, and the Veteran was able to resume her daily activities within several hours.  

There was no factually ascertainable increase in the severity of the Veteran’s disability in the one-year look-back prior to the August 19, 2008, date of claim.  As such, the 30 percent rating is warranted as of August 19, 2008, but no earlier.  

Accordingly, a 30 percent rating, but no more, for migraine headaches, including migraine variants with tension headaches, from August 19, 2008, to January 28, 2011, is warranted.

(b.) A 50 percent rating for migraine headaches, including migraine variants with tension headaches, from January 28, 2011, but no earlier, is granted.

The January 28, 2011, VA examination reflected that the Veteran had 10 out of 10 severity migraine attacks 5 times per week where she had to stay in bed and was unable to do anything the entire day.  The Board finds that this best approximates migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, warranting a 50 percent rating under DC 8100, the maximum schedular evaluation available.  There is no indication that such a worsening of symptoms occurred prior to the January 2011 examination nor that the Veteran’s symptoms are not encompassed by the 50 percent rating criteria.  As such, the Board finds that the current 50 percent rating is warranted as of January 28, 2011, but no earlier, and that the Veteran’s disability is fully capable of evaluation under the rating schedule.

TDIU

Entitlement to TDIU was granted effective August 13, 2010, in a September 2011 rating decision.  In a May 2012 decision, the effective date was amended to July 31, 2009.  As an ongoing claim for increased ratings was submitted February 22, 2008, the Board will consider entitlement to TDIU, including on an extraschedular basis, from that date.

A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war.  Id.  

From February 22, 2008, as per this decision, the Veteran’s service-connected disabilities included cervical spine DDD at 20 percent; cervical LUE radiculopathy at 20 percent; migraine headaches at 10 percent; left knee PFS at 10 percent; right knee PFS at 10 percent; bilateral pes planus at 10 percent; gastroesophageal reflux disease (GERD) at 10 percent; pelvic inflammatory disease (PID) at 10 percent; and hypertension, fibro adenomas of breast, and post-operative pilonidal cyst at noncompensable rates, for a combined evaluation of 60 percent.  As such, the schedular criteria for TDIU were not met.  

From August 19, 2008, as per this decision, the Veteran’s service-connected disabilities included migraine headaches at 30 percent; cervical spine DDD at 20 percent; cervical LUE radiculopathy at 20 percent; left knee meniscal condition at 20 percent; left knee PFS at 10 percent; right knee PFS at 10 percent; bilateral pes planus at 10 percent; GERD at 10 percent; PID at 10 percent; and hypertension, fibro adenomas of breast, and post-operative pilonidal cyst at noncompensable rates, for a combined evaluation of 80 percent.  As cervical spine DDD and cervical LUE radiculopathy result from one common etiology and combine to a 40 percent evaluation, the schedular criteria for TDIU were met.

Service connection for additional disabilities of thoracolumbar degenerative disc and joint disease (DDD/DJD) at 20 percent, effective March 30, 2009, and opiate-induced mood and pain disorder associated with cervical spine DDD at 30 percent, effective July 31, 2009, was later granted.

If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis.  It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service (Director) for extraschedular consideration.  Id.  

Accordingly, the Board will consider entitlement to TDIU on an extraschedular basis from February 22, 2008, to August 19, 2008, and entitlement to schedular TDIU from August 19, 2008, to July 31, 2009.  

The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001).  As such, the July 2018 Board remand requested the AOJ refer the Veteran’s claim to the Director for consideration of whether a TDIU was warranted on an extraschedular basis.  Such was accomplished and an Advisory Opinion was issued by the Director in January 2021.

The Board is not bound by the Director’s January 2021 findings.  See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extra-schedular consideration).  The Board is also not bound by the prior July 2018 remand directive to refer the matter for Director review.  Ray v. Wilkie, 31 Vet. App. 58 (2019).  (holding that the Board’s referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU).  In Ray v. Wilkie, the Court recognized that a referral decision under 38 C.F.R. § 4.16(b) is a factual finding but it is based on a lower evidentiary threshold than for a grant of an extraschedular TDIU.  

Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16.

The term “substantially gainful occupation” is not defined in the rating schedule.  Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one.  31 Vet. App. at 58.  In assessing the veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue.  Id.  Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  Id.  Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity.  Id.

In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of “sedentary employment.”  Withers v. Wilkie, 30 Vet. App. 139 (2018).  Until VA provides such a definition, “the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran’s education, training, and work history.”  Id. at 149-150; see also Rouse v. McDonough, No. 19-5699 (April 13, 2021). 

The Veteran has a high school education and one year of college education in business administration.  During military service and for several years post-service, the Veteran was employed as a cook.  Thereafter, she was promoted to positions of residential aide and residential coordinator at a youth drug and alcohol treatment facility.  Her duties included supervising eleven residential aides and clients onsite; maintaining the residential building, vehicles, and schedules; taking clients to doctor appointments; and attending health and safety training.  Her former employers confirmed that she was last employed in October 2007 and left her positions due to an inability to perform her required daily duties.  

Based on the foregoing, from an economic perspective, the Veteran has the education, skills, work history, and vocational training to perform work in food services and residential care, supervision, and management.  

In consideration of the “noneconomic component,” a private treating clinician noted in a December 2007 evaluation that part of the Veteran’s job included leading youth in exercises including Tae Bo and lifting heavy items.  The Veteran found that if she attempted to do the full complement of exercises, she typically experienced a flare-up of cervical spine symptoms.  Her clinician determined, based on her description, that she was attempting to do exercises in the workplace that were too strenuous, and he suggested that she be provided some guidelines about work restrictions, particularly limiting overhead activities.  

An April 2008 VA examiner determined that the Veteran’s bilateral knee disabilities resulted in trouble with directing an exercise program with work clients and going up and down stairs.  The bilateral knee disabilities resulted in severe effects on sports and recreation; moderate effects on chores, shopping, exercise, traveling, and dressing; and no effects on feeding, bathing, toileting, and grooming.  The effects of her cervical spine DDD and LUE radiculopathy on usual daily activities were severe effects on chores and traveling, moderate effects on shopping and grooming, and no effects on feeding, bathing, dressing, and toileting.  Exercise, sports, and recreation were prevented.  Her disability also interfered with cooking, cleaning, and grandparenting.  

At a January 2009 VA examination, the examiner determined that the functional impact of the bilateral knee disabilities was decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness and fatigue, decreased strength, and pain.  The effects on usual daily activities included severe effects on exercise and recreation, moderate effects on chores, shopping, and traveling, mild effects on driving, and no effects on feeding, bathing, dressing, toileting, and grooming.  Sports were prevented.  The examiner also found that the Veteran’s migraine headaches had significant effects on occupation resulting in increased absenteeism.  The effects included decreased concentration, difficulty following instructions, lack of stamina, weakness or fatigue, and pain.  The Veteran reported that she had to stop activities when her headaches flared.  The examiner concluded that the Veteran’s GERD impacted occupational activities due to decreased concentration.  

The Veteran was awarded Social Security Administration (SSA) disability benefits effective April 5, 2009.  SSA determined that her residual functional capacity prevented her from being able to perform past relevant work as a residential counselor due to disorders of the back and affective mood disorder.  

The January 2021 Advisory Opinion determined that the overall evidence failed to support the contention that any of the Veteran’s service-connected disabilities or a combination of the effects of those disabilities resulted in an exceptional situation that prevented gainful employment prior to July 31, 2009.  In support, the Director stated that although there were limitations due to the Veteran’s service-connected disabilities, they did not prohibit her from obtaining or maintaining gainful employment.

5. An effective date of August 19, 2008, but no earlier, for the award of TDIU is granted.

Based on the foregoing, the Board finds that the Veteran was unable to obtain or maintain substantially gainful employment from August 19, 2008.  

The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  See Ray, supra.  The Veteran had significant limitations in lifting, reaching, and climbing and limitations on prolonged walking and standing.  Guidelines for workplace limitations on overhead activities were provided by treating clinicians.  

The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity.  See Ray, supra.  The Veteran was not service-connected for a mental health condition during the appeal period.  However, clinicians noted that decreased concentration and difficulty following instructions resulted from her service-connected disabilities.  

Prior to August 19, 2008, the Veteran’s service-connected disabilities did not preclude her from engaging in the types of sedentary employment for which she had the skills, training, and work history to perform, specifically to include supervisory work.  Although she had difficulty with several physical aspects of her prior position as a residential coordinator, skills needed for that position could easily transfer to positions not requiring overhead lifting, climbing stairs, and prolonged walking and standing that were limited by her service-connected disabilities, specifically to include maintaining schedules, advising and supervising subordinates, and interacting with clients.  

From August 19, 2008, in addition to her physical disabilities, the Veteran’s service-connected migraine headaches worsened, resulting in decreased concentration, difficulty following instructions, lack of stamina, weakness or fatigue, and pain causing increased absenteeism.  Such symptoms would have a significant effect on her ability to engage in sedentary employment as outlined above.  As such, from August 19, 2008, the combination of the Veteran’s service-connected disabilities would significantly impair her ability to obtain or maintain employment for which she has the necessary education, training, and work history.  Therefore, TDIU is warranted as of that date.  

The Board does not doubt that prior to August 19, 2008, the Veteran’s service-connected disabilities caused impairing symptomology.  This impairment of function was recognized by the ratings assigned to each disability. The evidence does not support that these disabilities precluded substantially gainful employment, specifically to include sedentary employment as defined in the Veteran’s specific case.  Although the Board recognizes that the Veteran ceased working in 2007, the mere lack of employment or discontinuation of specific jobs does not entail that one cannot maintain gainful employment.  See Faust v. West, 13 Vet. App. 342, 355 (2000).  Determining whether a veteran is capable of engaging in substantially gainful employment requires consideration of that veteran’s specific abilities and employment history.  

In light of the Veteran’s past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran was capable of substantially gainful work prior to August 19, 2008.  Accordingly, the weight of the evidence does not support the conclusion that an extraschedular TDIU is merited prior to that date.  As such, an effective date of August 19, 2008, but no earlier, for the grant of TDIU is warranted.

 

 

Shereen M. Marcus

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Rachel E. Jensen, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.