Citation Nr: 21032347 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-01 909 DATE: May 26, 2021 ORDER Entitlement to service connection for a right elbow disability, to include as secondary to a service-connected left knee disability, is denied. Entitlement to an increased rating of 50 percent, but no higher, for bipolar disorder is granted. Entitlement to an increased rating for a left knee disability, currently rated as 10 percent disabling, is denied. Entitlement to a separate rating of 10 percent, but no higher, for instability of the left knee under Diagnostic Code 5257 is granted. Entitlement to a disability rating for compensation based on individual unemployability (TDIU) prior to October 24, 2019 is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right elbow disability was caused or aggravated by the Veteran's service-connected left knee disability. 2. The evidence demonstrates that the severity, frequency, and duration of the Veteran's bipolar disorder symptoms more closely approximate occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect, difficulty in understanding complex commands, impairment of short-and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and the various other symptoms manifested throughout the appeal period. 3. The Veteran's left knee disability is productive of flexion limited to, at worst, 80 degrees with painful motion; flexion limited to 30 degrees has not been shown at any time. 4. Throughout the appeal period, the Veteran's left knee disability has been manifested by mild lateral instability. 5. The Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities prior to October 24, 2019. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right elbow disability, to include as secondary to a service-connected left knee disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to an increased rating of 50 percent, but no higher, for bipolar disorder have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to an increased rating for a left knee disability, currently rated as 10 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5260. 4. The criteria for entitlement to a separate rating of 10 percent, but no higher, for left knee instability under DC 5257 have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3 4.7, 4.71a, Diagnostic Code 5257. 5. The criteria for entitlement to a TDIU prior to October 24, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 to February 2007. The Veteran's claims were previously before the Board in May 2019. At that time, the Veteran's claims were remanded for additional development, including new VA examinations. That development having been completed, the Veteran's claims are once again before the Board and will be adjudicated below. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for a right elbow disability, to include as secondary to a service-connected left knee disability The Veteran contends that he has a right elbow disability that is due to a fall caused by his service-connected left knee disability. The Veteran has not contended at any point that his right elbow disability is the direct result of service, and as such, the Board has declined any analysis as to direct service connection. At the outset, the Board acknowledges that the Veteran has a current elbow disability and is currently service-connected for a left knee disability. The question for the Board is whether the Veteran's right elbow disability can be etiologically linked to his left knee disability, either as the result of his left knee disability, or aggravated by it. In a December 2014 medical note, it was documented that the Veteran was returning for a re-check of his right elbow and left knee. The Veteran complained of pain along the medial aspect of the right elbow with paresthesias and twitching of his right ring and small fingers. The examiner noted increased pain with resisted wrist extension. In February 2017, the Veteran underwent a VA examination for his elbow. The examiner opined that the Veteran's elbow condition was not aggravated by his left knee disability. The examiner reasoned that there were no medical findings indicating a knee injury or trauma resulting in falls with resultant injury to the elbow to show correlation. The examiner determined it was unlikely for an elbow condition to be primarily related to a knee condition. However, the examiner did not comment as to whether the condition was at least as likely as not proximately due to or the result of the Veteran's left knee condition. As such, the Board remanded the claim for additional development. During the Veteran's February 2019 Board hearing, he testified that he was climbing a ladder and his knee gave out on him. At that point, he was hanging on by his left arm and ended up fracturing a rib from that particular case. On another occasion, he was carrying a can of paint across the yard when his knee gave out. Following that event, he had to have elbow surgery. The Veteran reported that when he went in for treatment after his falls, the medical notes reflected that he slipped, and it was not properly documented that his knee gave out and that is what caused him to fall. In an October 2019 VA examination, an examiner confirmed that the Veteran had a right elbow disability. The Veteran reported falling onto his right elbow after his left knee gave out, and noted having surgery for his elbow and ongoing pain. The examiner opined that the Veteran's elbow condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner reasoned that the notes in the May 5, 2015 medical report regarding the Veteran's elbow condition did not specifically document that the Veteran injured his elbow from a fall secondary to his knee. Furthermore, the Veteran's condition was an ailment brought on by repetitive use of repetitive trauma. The examiner noted that the Veteran also had a history of painting, which could lead to his diagnosed elbow condition. The Board has considered the Veteran's lay assertions as to the etiology of his right elbow disability. Although the Veteran is competent to attest to his experiences and has provided credible testimony regarding his fall, he is not competent in these circumstances to opine as to the medical etiology of his elbow disability, as he lacks medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds the VA opinions of record to be more probative in this regard. The examiners considered the Veteran's history and provided adequate rationales, ultimately concluding that from a medical perspective, it is less likely that his current elbow disability is related to or aggravated by his service-connected knee disability. Of importance, the examiner considered the Veteran's lay statements indicating that his elbow condition resulted from his fall. Nonetheless, the examiner explained that the Veteran's elbow disability was the kind of ailment brought on by repeated trauma from repetitive use, like the Veteran may have incurred from his job as a painter. Consequently, the Board gives more probative weight to the competent medical evidence. For these reasons, service connection for a right elbow disability secondary to a service-connected left knee disability is not warranted. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, it will assign the lower rating. Id. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 2. Entitlement to an increased rating for bipolar disorder The Veteran initially filed a claim for anxiety disorder which was denied in a September 2008 rating decision. On September 5, 2013, the Veteran submitted an additional claim for a mental health condition, to include depression. In a January 2014 rating decision, the Veteran's claim was granted with an evaluation of 30 percent effective April 9, 2008, the date of his original claim. On September 19, 2014, the Veteran submitted an additional claim for his mental disability as well as his left knee disability. In a January 2015 rating decision, the Veteran's claim for anxiety and depression was determined to be more accurately described as bipolar disorder with panic disorder. In that decision, the Veteran was granted a 30 percent rating from his other mental illnesses for bipolar disorder, effective September 19, 2014, and his prior rating for anxiety and depression was discontinued. The Veteran filed a notice of disagreement in February 2015. In January 2016, the RO received the Veteran's Form 9, appealing his claim to the Board. As the Veteran's claim for bipolar disorder has been recharacterized from his claim for depression or anxiety as of September 19, 2014, the Board will consider evidence from the date of the Veteran's most recent mental health claim, dated September 19, 2014. The Board notes that in a February 2021 rating decision, the Veteran's bipolar disorder was increased from 30 percent, to 100 percent effective October 24, 2019. As such, for the period from September 19, 2014 to October 24, 2019, the Board will consider whether the Veteran should be awarded a rating in excess of 30 percent. From October 24, 2019, the Board notes that the Veteran has received the highest possible rating for bipolar disorder, and has not requested extraschedular consideration. Therefore, the Board will not provide analysis as to the Veteran's symptoms after October 24, 2019. The Board notes that the Veteran's bipolar disorder has been rated under Diagnostic Code 9432. Under Diagnostic Code 9432, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. Turning to the evidence of record, the Veteran underwent a VA examination in January 2015. The examiner noted that the Veteran had diagnoses of bipolar disorder and panic disorder, and that they were mutually aggravating conditions and their impact on the Veteran's functioning could not be separated without resorting to undue speculation. The examiner noted that the Veteran's level of occupational and social impairment was best described as occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks during periods of significant stress. The Veteran reported that he began experiencing frustration following his second knee surgery in 2004. He reported experiencing roller coaster emotions, including depression and hypomanic episodes, but most often feeling depressed. At the time, the Veteran reported feeling normal. Most of the time he reported that he felt sadness, anhedonia, and depressed mood, but also the occasional episodes of three to four days where he had more energy and spent money he could not afford and engaged in excessive activity. The Veteran denied inpatient treatment. He endorsed generalized anxiety symptoms, and experiencing panic attacks that felt like heart attacks lasting between 15 minutes and an hour. The examiner noted the following symptoms: depressed mood, anxiety, panic attacks that occurred weekly or less, and disturbance of motivation and mood. At the examination, the Veteran was alerted and oriented, and appeared to provide an accurate history with adequate insight. His auditory comprehension was intact, and response time normal. He had an affect congruent to mood, linear thought process, and was not distractible. His speech was normal, and his memories appeared normal. In the Veteran's Form 9 received in January 2016, he reported that he experienced panic attacks on average three times per week, with a minimum of two panic attacks due to being stressed or overwhelmed. He also wrote that he had severe difficulty establishing and maintaining work and social relationships, disturbances in mood, depression and mania causing a loss of friends, impairment of short term memory, difficulty paying attention, disturbances in motivation, difficulty completing tasks and achieving goals, and maintaining everyday maintenance of himself and others around him. He reported problems with family relations and friendships. He reported that he was living with his parents because it was hard for him to live alone, and that he was unable to date because of fluctuations in his mood. When in a manic state, the Veteran noted that he was very agitated and aggressive, and had to stay away from people. The Veteran was hospitalized in February 2016 for worsening mental health symptoms. The Veteran's February 2016 hospitalization records indicate that during a heated phone conversation with his ex-wife, the Veteran made threats about hurting his ex-wife and himself that he later explained he did not mean. He reported that when this happened, he was drinking to self-medicate, and that he now wanted to learn coping skills. The Veteran reported that his symptoms were worse since the winter months. His symptoms were noted to be nervousness, anxiety, and insomnia. He denied suicidal ideation or hallucinations. In additional May 2016 records, it was noted that the Veteran did not handle stress well, get along with authority figures well, and lost attention after a few minutes. It was noted that the Veteran reported being very socially withdrawn and spent compulsively when in a manic state. The Veteran reported that he would like to find a job, but believed that he could not find a job that he would be able to do long term. He was assessed to be a low risk of violence towards himself and others. At the Veteran's February 2019 Board hearing, he testified that his 2015 VA examination was very quick, and not very thorough. At that time, the examiner did not inquire about the Veteran's hygiene or relationships. He clarified that during depressed moods, he will not shower or brush his teeth and that could last for a week or two. The Veteran testified that he was involved in a mental health program since December 2014, wherein he saw a counselor once a week, and a psychiatrist about every two to three weeks. The Veteran reported that he exhibited mood swings, depression, mania, and irritability which allowed him to qualify for the program. The Veteran testified that he became involved by recommendation of a doctor, and that he tended to isolate himself for long periods of time. He also testified that he did not know how to control his explosive anger, so he tended to stay home more often and try to arrange for things to be done. For example, the Veteran has his groceries delivered. The Veteran has confirmed that he is divorced, and has a twelve year old daughter. His daughter stays with him two or three times a week, but there are many weeks where her mother has to come get her because his mood is not stable. The Veteran reported that he is not close with any other friends or family. The Veteran underwent a VA examination in October 2019. Due to that examination, the Veteran was granted a 100 percent disability rating for his bipolar disorder by the RO. As such, the Board will not provide the contents of that examination herein, and will instead move on to analysis of the above evidence. After reviewing the evidence, the Board finds that the Veteran's bipolar disorder has been manifested by symptoms that predominately correspond to those contemplated by the 50 percent rating. During the period on appeal, the evidence indicates that the Veteran's symptoms have consistently included panic attacks, anxiety, depression, increasingly problematic attention span and memory impairment, increased anger and irritability, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. Although the Veteran's January 2015 examination indicated that the Veteran had only mild impairment in social and occupational settings only during periods of significant stress, the Board finds that the severity and frequency of the Veteran's predominating symptoms manifest to occupational and social impairment with reduced reliability and productivity as contemplated by the 50 percent rating. In determining that the Veteran meets the 50 percent criteria, the Board has considered the Veteran reports of panic attacks multiple times a week, his February 2016 hospitalization and resultant increased symptoms of anxiety, depression, and manic status, as well as the Veteran's February 2019 testimony describing the severity of his symptoms. The preponderance of the evidence, however, does not indicate that an even higher, 70 percent rating is warranted at any time during the appeal period. In so determining, the Board acknowledges the medical and lay evidence reflecting intermittent symptoms that would meet the criteria for a 70 percent rating. Specifically, the Veteran has exhibited reduced impulse control, and occasional lapses in hygiene, as reported in his February 2019 hearing. However, the evidence demonstrates that the Veteran has not reported any suicidal or homicidal ideation at any point during the appeal period, and the Veteran was assessed to be a low risk of violence towards himself and others in May 2016. Further, the record does not contain instances of obsessive compulsive behaviors. While the Veteran reportedly does not have any friends or familial relationships, the Board notes that he is still able to see and occasionally take care of his young daughter. Thus, the manifestations of the Veteran's symptoms for this period on appeal do not meet the criteria for a 70 percent rating. Further, a rating of 100 percent is also not warranted, as the evidence does not reflect the Veteran exhibited gross impairment in thought processes or communication, grossly inappropriate behavior, is a persistent danger of hurting self or others, has disorientation to time or place, or has memory loss for names of close relatives, own occupation, or own name causing total occupational and social impairment. While the Veteran's communication and ability to concentrate to focus visibly declined throughout the appeal period and he reported intermittent inability to maintain minimum hygiene, the bulk of his symptoms do not meet the criteria for a 100 percent rating. As noted above the Veteran was notably not a danger to himself or others, and did not exhibit memory problems as severe as forgetting names or relatives or his own occupation. Moreover, he was not totally socially impaired, as he still maintained a relationship with his daughter. Essentially, the preponderance of the evidence supports a finding that the severity, frequency, and duration of the Veteran's bipolar disorder symptoms meet the criteria for an increased rating of 50 percent, but no higher. The Board has considered the benefit-of-the-doubt doctrine in reaching this determination, but finds that the evidence does not support an even higher rating at any point during the period on appeal. 3. Entitlement to an increased rating for a left knee disability, currently rated as 10 percent disabling The Veteran's claim for a left knee disability was initially granted in a September 2008 rating decision, rated at 10 percent effective April 9, 2008. In a September 5, 2013 fully developed claim form, the Veteran requested an increased rating for his left knee disability. In a January 2014 rating decision, the Veteran's rating of 10 percent was continued. In September 2014, the Veteran submitted an additional claim for his mental illness disability as well as his left knee disability. The Veteran's knee disability rating was continued in a March 2017 rating decision. In April 2017, the Veteran submitted a notice of disagreement. In November 2017, the Veteran submitted a Form 9, appealing his claim to the Board. As the Veteran filed his increased rating claim in September 2014, the Board will consider evidence as of September 2013. At the outset, the Board notes that the Veteran has been granted separate ratings for left leg atrophy of muscle groups XI and XIV, as well as for left knee scarring. The Veteran's left knee disability has been rated under Diagnostic Code 5003-5260 for the period on appeal. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional code to identify the basis for the rating assigned. See 38 C.F.R. § 4.27. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 38 C.F.R. § 4.71a. As the Veteran's left knee disability manifests by limitation of motion, the disability will be rated based on the diagnostic codes concerning limitation of motion of the knee. The Board's analysis will begin with Diagnostic Code 5260, which contemplates the criteria for limitation of flexion of the knee, but all potentially applicable rating criteria will also be considered. Under Diagnostic Code 5260, in relevant part, flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a maximum 30 percent rating. 38 C.F.R. § 4.71a. The Board notes that separate ratings under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension) may be assigned for disability of the same joint. See VAOPGCPREC 9-04 (September 17, 2004). As such, Diagnostic Code 5261 may potentially be for application here. Under Diagnostic Code 5261, extension limited to 5 degrees is noncompensable. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Finally, where extension is limited to 45 degrees, a maximum 50 percent rating may be assigned. 38 C.F.R. § 4.71a. For reference, normal range of motion of the knee is 140 degrees of flexion and zero degrees of extension. See id. at Plate II. In addition to the ratings based on limitation of motion, a separate rating may also be assigned for instability of the knee. See VAOPGCPREC 23-97 (July 1, 1997). Under Diagnostic Code 5257, other knee impairment with slight recurrent subluxation or lateral instability warrants a 10 percent rating. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Effective February 7, 2021, Diagnostic Code 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. In January 2014, the Veteran underwent a VA examination. The examiner confirmed the Veteran's diagnosis, and noted that the Veteran reported his condition as chronic, giving way, and hurting all the time which prevented him from climbing ladders and going up and down stairs. The Veteran did not report flare-ups. The examiner noted that objective evidence of painful motion began for the Veteran on flexion at 125 degrees. For extension, extension ended at 0 degrees, and the Veteran did not exhibit objective evidence of painful motion. The Veteran was able to perform repetitive use testing, with no change in range of motion. The examiner noted that the Veteran did not have additional limitation of range of motion of the knee following repetitive use testing, but did have functional loss of the knee described as pain on movement. The Veteran also had tenderness or pain to palpation in his left knee. Muscle strength was normal. Stability testing produced all normal results. There was no history of recurrent patellar subluxation or dislocation, and no shin splints or meniscal conditions. The examiner noted that the Veteran used a brace to assist him. Ultimately, the examiner found that the Veteran's knee condition did not impact his ability to work. In a December 2014 medical note, a doctor noted that the Veteran suffered from chronic left knee pain with intermittent instability. In January 2015, the Veteran was afforded an additional VA examination for his knee condition. The examiner confirmed the Veteran's diagnosis and noted the Veteran's prior surgery. The Veteran reported that he was currently having problems with his knee giving out, pain, and movement. He reported pain with steps, ladders, hills, and inclines, and reported he could not hike like he used to. He also reported going back to his job as a painter and laborer was very difficult due to having to go up and down a ladder while carrying equipment. When going up inclines, stairs, or a ladder, his knee gets weak. He explained that it gave out sometimes, and occasionally hyperextended. The Veteran reported experiencing pain every day, all day, but that the level of pain was not constant. The Veteran reported flare-ups, described as having to use ice and elevate his knee upon returning to his home. He reported flare-ups about three times a week, with a duration of about hours and up to two days. The severity was described as severe. The Veteran also reported functional loss described as great difficulty with pain and when bending the left knee, going up any stairs, inclines, or ladders. The Veteran's initial range of motion showed flexion from 0 to 95 degrees, and extension from 95 to 0 degrees, with the Veteran unable to perform movements that required deep bending or squatting of his knee. There was pain noted on the examination during flexion which caused functional loss. There was no pain with weightbearing, but the Veteran's knee was very tender to palpation to the lateral and medial patella. The Veteran was able to perform repetitive use testing with up to three repetitions, and there was no additional loss or range of motion after the three repetitions. The Veteran was not examined immediately after repetitive use, and the examination neither supported nor contradicted the Veteran's statements describing functional loss with repetitive use over time. The examiner noted that they were unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. The examiner explained that they had the Veteran repeat the joint movements three times over a brief period of time during the examination, but that the examination was not the same as repeated use over a longer period of time such as in a work environment or home environment or other setting. Therefore, the examiner could not answer without resorting to speculation. The examination was not being conducted during a flare-up, and the examiner noted the examination neither supported nor contradicted the Veteran's statements describing functional loss during flare-ups. The examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups. The examiner explained that there was no observed or objective basis to answer the question. There was no reduction in muscle strength. The Veteran did exhibit muscle atrophy. There was no ankylosis, and no joint instability. There was a history of recurrent effusion, which the examiner noted on MRIs from the early 2000s, and a small effusion seen mostly recently in April 2014. There was no objective evidence of crepitus. The examiner found that the Veteran's condition did impair his ability to work. The examiner explained that the Veteran currently had great difficulty and pain when bending the left knee, going up stairs, inclines, or ladders and that the Veteran's left knee felt weak. The Veteran underwent a VA examination in January 2017 for his knee disability. The Veteran reported that his condition had steadily gotten worse over the years, and that he was no longer able to paint houses which was his main source of income. The Veteran reported flare-ups, described as occurring five to eight times a month, usually after walking or climbing a ladder, stairs, or just physical therapy at home. The Veteran described that his knee became very painful accompanied by swelling. He also reported suffering from severe pain at night and that while riding in a car his knee became very stiff and painful. Sometimes his knee impaired his ability to get out of bed. The Veteran also reported functional loss. The Veteran reported that due to pain and stiffness, doing physical therapy was becoming very hard to complete at home due to pain and limited range of motion. His pain radiated down his leg, and over the past couple of years had begun to cause very bad left hip and lower back pain, and sometimes right knee pain. Initial range of motion tests showed that the Veteran's left knee had flexion from 0 to 85 degrees, and extension from 85 to 0 degrees. The examiner noted that while abnormal, the range of motion itself did not contribute to functional loss. The examiner did note that pain during flexion caused functional loss. There was no evidence of pain with weight bearing, or any evidence of crepitus. The examiner noted moderate medial and lateral tenderness. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional loss of function or range of motion after the three repetitions. The Veteran was not being examined immediately after repetitive use testing, and the examiner noted that the examination was medically consistent with his statements describing functional loss with repetitive use over time. The examiner noted that pain, fatigue, and lack of endurance significantly limited functional ability with repeated use over time. In terms of range of motion, flexion was to 85 degrees, and extension was from 85 degrees to 0 degrees. The examination was noted to be medically consistent with the Veteran's statements describing functional loss during a flare-up. The examiner noted that pain, fatigue, and lack of endurance significantly limited functional ability with flare-ups. In terms of range of motion, flexion was 0 to 80 degrees, and extension was 80 to 0 degrees. Additional factors contributing to the Veteran's disability included less movement than normal due to swelling and disturbance of locomotion. Muscle strength was normal, and the Veteran did not have muscle atrophy. There was no ankylosis present, and no history of recurrent subluxation. Joint stability testing was all normal. Ultimately, the examiner concluded that the Veteran's disability impaired his ability to work, as he was unable to perform physical activities. At the Veteran's February 2019 Board hearing, he testified that he had trouble lifting, climbing stairs, and climbing ladders, and that his knee hurt on a daily basis, precluding his ability to squat. The Veteran also reported that sometimes his knee gave out, and caused him to fall due to certain pain or fatigue, described as instability. The Veteran reported having at least four severe falls due to his knee. On a daily basis, he reported that the pain out of one to ten, was a six or seven. Due to this pain, he reported wearing a brace to help, but that it did little. He described that before his knee gives out, there is a sharp shooting pain. The Veteran's representative explicitly requested that the Veteran be granted a rating for his left knee instability. In October 2019, the Veteran was afforded an additional VA examination. The Veteran reported worsening pain, and decrease in range of motion and strength. The Veteran reported flare-ups, described as ongoing dull aching with periods of sharp pain on a daily basis. The Veteran also reported functional loss, described as a limited ability for prolonged walking, standing, and an inability to kneel or squat. Initial range of motion results were 0 to 100 degrees for flexion, and 100 to 0 degrees for extension. The examiner noted that range of motion contributed to functional loss; activities involving weight bearing and knee range of motion caused left knee pain, and affected ambulation and use of lower extremity. Pain on the examination also caused functional loss; there was pain during flexion and extension. There was no evidence of pain with weight bearing, and no evidence of pain on palpation or crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no functional loss or range of motion afterwards. The examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use. The examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. Pain, weakness, fatigability, or incoordination did not limit functional ability with flare-ups. The Veteran's muscle strength was reduced, rated at 4 out of 5 for flexion and extension. There was no muscle atrophy and no ankylosis. There was no joint instability, including recurrent subluxation. All joint stability testing produced normal results. There was no objective evidence of pain on passive range of motion, and no objective evidence of pain when the joint was used in non-weight bearing. The examiner concluded that the Veteran's knee condition did impair his ability to work, stating that activities involving weight bearing and knee range of motion caused left knee pain, and decreased range of motion affected ambulation and the use of his lower extremity. In consideration of the above, a rating in excess of 10 percent for left knee disability is not warranted under Diagnostic Code 5260. The Veteran's service-connected left knee disability has been assigned a 10 percent rating under Diagnostic 5260-5003, for limitation of flexion. In order for a disability evaluation in excess of 10 percent to be assigned under Diagnostic Code 5260, flexion of the knee must be limited to 30 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Here, the Board finds no basis for assigning a rating in excess of 10 percent under Diagnostic Code 5260 since the evidence shows that there has not been flexion limited to 30 degrees or more. There was no indication in the record of flexion to 30 degrees that would warrant an increased rating to 20 percent, to include additional functional loss due to pain. The Board also notes that a separate rating under Diagnostic Code 5261 is not warranted, as the Veteran has had full extension for the entire appeal period. The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45 for the entire period on appeal. See DeLuca, supra. The Veteran's left knee disability was applied to the applicable rating criteria, general counsel opinions, and case law. There is no question that the Veteran experiences knee symptomatology that includes pain and less movement than normal. However, such symptoms, to the extent they are not specifically enumerated by the schedular rating criteria, are nevertheless considered in the schedular ratings that are assigned, as the Board is required to consider functional limiters such as pain in assessing orthopedic injuries. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). As such, even considering functional loss due to pain and other factors, the current functional impairment of the left knee and the symptoms of pain are encompassed in the currently assigned ratings for the relevant period on appeal under Diagnostic Code 5260. However, the Board has determined that the Veteran is entitled to a separate rating of 10 percent for left knee instability. In this respect, the Veteran has credibly reported instability of the left knee throughout the period on appeal. In addition, in a December 2014 medical note, a doctor noted that the Veteran suffered from chronic left knee pain with intermittent instability. However, the Board finds that a rating in excess of 10 percent for instability is not warranted. The Veteran's VA examinations have uniformly noted that the Veteran does not suffer from a history of patellar subluxation or dislocation. Moreover, the VA examinations on file have noted normal joint stability testing. Nevertheless, in consideration of the Veteran's credible reports of instability with intermittent falling episodes as well as the December 2014 acknowledgement of instability, the Board finds that the combination of lay and medical evidence quantifies the severity of instability to be, at worst, mild in degree. Therefore, a separate 10 percent disability rating for left knee instability under DC 5257, but no higher, is granted. While the evidence supports a separate rating of 10 percent for left knee instability under DC 5257, the Board notes that the evidence dated since the effective date of the amended criteria of DC 5257 does not support a rating higher than 10 percent. Under the amended DC 5257, 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 20 percent rating is also 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. Additionally, 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. The evidence since February 7, 2021 does not support a rating higher than 10 percent for instability. In sum, the Board finds that a rating in excess of 10 percent under Diagnostic Code 5260 is not warranted but an additional rating of 10 percent under Diagnostic Code 5257 is applicable for the period on appeal. TDIU 1. Entitlement to a TDIU The Veteran contends that he is unemployable due to his service-connected disabilities. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of TDIU, disabilities affecting a single body system (i.e., neurological) will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Veteran submitted his application for unemployability in October 2016. As this was during the pendency of the appeal for increased ratings for his psychiatric disorder and left knee disability, the Board finds that the TDIU is part and parcel of these increased rating claims. As such, from September 2014 (the date of his increased rating claims), the Veteran is service-connected for: bipolar disorder (50 percent from September 19, 2014), left knee osteoarthritis status post meniscus tear (10 percent from April 9, 2008), hypertension (10 percent from March 21, 2012), left leg atrophy of muscle group XI (10 percent from September 19, 2014), left leg atrophy of muscle group XIV (10 percent from September 19, 2014), left knee instability (10 percent from September 19, 2014), and left knee scar (0 percent from April 9, 2008). Combined, the Veteran has a total 70 percent disability rating and meets the schedular criteria under 38 C.F.R. § 4.16(a). The Board notes that from October 24, 2019, the Veteran has a 100 percent rating for his service-connected bipolar disorder. The Court recognizes that a 100 percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). If a veteran is totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to rate him/her otherwise totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on a disability other than the disability that is rated at 100 percent. Bradley, 22 Vet. App. 280. Here, the issue of TDIU is moot from October 24, 2019, as the Veteran has been rated at 100 percent, and the evidence does not show, and he has not claimed, that he is unable to work due to any single service-connected disability. As the Veteran is not in receipt of a 100 percent rating for the period prior to October 24, 2019, the issue of TDIU is not rendered moot for that period, and the Board must determine if a grant of TDIU is warranted. In the Veteran's October 2016 application for unemployability, he reported that his bipolar disorder, PTSD, and knee problems impacted him severely on a daily basis. He further reported that he had not worked a full time job or been able to handle schoolwork without severe side effects from his disability as early as 2008. The Veteran reported that he last worked full time in August 2008, and became too disabled to work in May of 2011. He reported that in 2008 when he last worked full time, he was a laborer. The Veteran specified that he was self-employed, and performed labor such as painting, mowing, and gardening. As to education, the Veteran reported that he has a high school education and one year of college education, with no other special training. The Board notes that in the Veteran's February 2019 Board hearing, discussed below, the Veteran also reported employment as an intern at the EPA after 2008, at least until 2011. In January 2017, the Veteran underwent a VA examination for his knee disability. The Veteran reported that his condition had steadily gotten worse over the years, and that he was no longe able to paint houses which was his main source of income. Ultimately, the examiner concluded that the Veteran's disability impaired his ability to work, as he was unable to perform physical activities. In the Veteran's May 2016 medical records regarding his bipolar disorder, it was noted that the Veteran did not handle stress well, get along with authority figures well, and lost attention after a few minutes. It was noted that the Veteran reported being very socially withdrawn and spent compulsively when in a manic state. The Veteran reported that he would like to find a job, but believed that he could not find a job that he would be able to do long term. During the Veteran's February 2019 Board hearing, he testified that during knee flare-ups, he has to sit and keep his leg immobilized, keep it on ice, and take medication. On a daily basis, he reported that the pain out of one to ten, was a six or seven. Due to this pain he reported wearing a brace to help, but that it did little. He also testified that he was climbing a ladder and his knee gave out on him and ended up fracturing a rib. On another occasion, he was carrying a can of paint across the yard when his knee gave out. Following that event, he had to have elbow surgery. The Veteran testified that his last employment was with the EPA as an intern around 2011. He was terminated from that job due to his mental illness, and he was relieved because he reported he was not able to do the jobs that he was supposed to, and would sometimes lash out at supervisors. This position was sitting down, working at a desk. The Veteran reported that was very hard. Prior to that, he reported that he was doing some construction-like jobs, but his knee prevented him from doing those successfully. He continued to push himself but ended up injuring himself and having to stop. The Veteran also reported that he tried to go back to school after his EPA internship. He was involved in the vocational rehabilitation program, and he was not capable of going to school full time. He was worn down and ended up having to withdraw from classes after two or three semesters. The Veteran has confirmed that he is divorced and has a twelve year old daughter. His daughter stays with him two or three times a week, but there are many weeks where her mother has to come get her because his mood is not stable. The Veteran reported that he is not close with any other friends or family. Given the restrictions on his employability, and resolving any doubt in favor of the Veteran, the Board finds that the effects of the manifestations of his service-connected disabilities have been sufficiently incapacitating as to result in unemployability in light of the severity of his symptoms and experience. In the instant case, it is not clear that the Veteran is able to perform physical or non-physical work throughout the period on appeal due to the severity of his left knee and bipolar disorder conditions. The Veteran's left knee disabilities cause him immense pain, and his knee condition impairs him from performing tasks like climbing up ladders, which are primary to the Veteran's previous work as a laborer. While the Veteran attempted to obtain employment in an office setting through an EPA internship, he was unable to hold such employment due to his bipolar disorder and resultant symptoms, which made focusing and following orders from supervisors difficult. While the Veteran has extensive experience in physical employment, such as painting, the Board finds that his left knee disabilities make such work too dangerous and difficult for the Veteran to perform. The Veteran has testified that he has fallen multiple times while on a ladder attempting to perform this work. Moreover, as noted above, while the Veteran could then feasibly seek non-physical employment, the severity of his bipolar disorder precludes such employment. The Veteran's bipolar disorder was raised to a 50 percent rating within this decision due to the Veteran's intense anxiety, depression, irritability, and increasing difficulty focusing. As such, the evidence does not show that the Veteran is able to obtain physical or non-physical gainful employment due to his service-connected disabilities. In sum, having carefully considered the Veteran's contentions, his education and employment background, and all of the limitations imposed on him as a consequence of his service-connected disabilities, and resolving all doubt in the Veteran's favor, the Board finds that the criteria for entitlement to a TDIU have been met for the period prior to October 24, 2019. See 38 C.F.R. § 4.16(a). See also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Vosburgh, 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.