Citation Nr: 21039853 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-00 104 DATE: July 1, 2021 ORDER Entitlement to a rating more than 10 percent for right knee patellar tendonitis with patellofemoral pain syndrome is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Right knee patellar tendonitis with patellofemoral syndrome manifests in pain and limited motion. Flexion is better than 60 degrees. 2. The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. The record reflects the Veteran has been attending school or employed throughout the relevant appeals period. CONCLUSIONS OF LAW 1. The criteria for a disability rating more than 10 percent for right knee patellar tendonitis with patellofemoral pain syndrome are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2012 to January 2016. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision that, in relevant part, granted service connection for right knee patellar tendonitis with patellofemoral pain syndrome and assigned a 10 percent evaluation. The Board previously remanded the claims in a January 2019 decision to obtain a new VA examination for the right knee that complied with the requirements of 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016) and contained adequate rationale as to why range of motion during flare-ups could not be estimated. The Board also determined that the record reasonably raised the question of whether the Veteran was unemployable and that a claim for a total disability rating based on individual unemployability (TDIU) had been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim for a TDIU was remanded as inextricably intertwined with the issue of whether an increased rating was warranted for the right knee disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). A new VA examination for the Veteran's right knee was obtained in December 2019. The new examination is adequate and compliant with remand instructions and all controlling law, and it provides all data necessary to rate the claim. The Board's prior remand instructions have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). A supplemental statement of the case (SSOC) was issued in August 2020, and the appeal was thereafter recertified to the Board. In December 2020, the Veteran submitted a VA Form 20-0996 higher-level review request with respect to the denial of an increased rating for the right knee disability, indicating that he was opting into the modernized review system from the August 2020 SSOC. A claimant may request review of a legacy claim under the modernized review system following the issuance of an SSOC that was issued on or after February 19, 2019 if the request for review is received within 60 days from the date that the AOJ mails the supplemental statement of the case, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. See 38 C.F.R. §§ 19.2 (d)(2); 19.52 Here, the notice of the rating decision on appeal was mailed to the Veteran and his representative on April 12, 2016. The relevant SSOC was issued on August 5, 2020. The higher-level review request was received well after both the 1-year period following the rating decision and the 60-day period following the SSOC had expired. The higher-level review request was untimely as to the claim for an increased rating for the Veteran's right knee disability, and the claim remains in appellate status before the Board under the legacy review system. 1. Entitlement to a rating more than 10 percent for right knee patellar tendonitis with patellofemoral pain syndrome. The Veteran seeks a rating in excess of 10 percent for right knee patellar tendonitis with patellofemoral pain syndrome. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 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 Veteran's right knee disability is current assigned a 10 percent rating under Diagnostic Code 5260 which pertains to limited flexion of the knee. Diagnostic Code 5260 provides a 10 percent evaluation for flexion limited to 45 degrees, a 20 percent evaluation for flexion limited to 30 degrees, and a 30 percent evaluation for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Separate ratings may be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Diagnostic Code 5257 provided a 10, 20, or 30 percent ratings for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The terms mild, moderate, and severe are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Effective February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, including Diagnostic Code 5257. If a law or regulation changes during a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by the amendment's effective date. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Effective February 7, 2021, the new version of Diagnostic Code 5257 provides, in pertinent part, that for recurrent subluxation or instability of the knee, a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g. cane(s), crutch(es), walker) for ambulation; (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g. cane(s), crutch(es), walker) or bracing for ambulation. A 30-percent rating is assigned for recurrent subluxation or instability when there is an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g. cane(s), crutch(es), walker) and bracing for ambulation. See 85 Fed. Reg. at 76463. Alternatively, the new version of Diagnostic Code 5257 provides, in pertinent part, that for patellar instability, a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. The diagnostic criteria applicable to semilunar cartilage are found at 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under that code, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5261, a 0 percent rating is warranted for extension of the knee limited to 5 degrees. A 10 percent rating is warranted when extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted with extension limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. An evaluation of a knee disability under Diagnostic Code 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, and vice versa. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Rather, a separate evaluation in a given case depends on whether manifestations for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code; and that, in evaluations of musculoskeletal disabilities based on limitation of motion, a manifestation has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45, pursuant to principles set forth in DeLuca. Id. at 11819. After reviewing the evidence, the Board concludes that a rating in excess of 10 percent is not warranted for the Veteran's right knee patellar tendonitis with patellofemoral pain syndrome, and that no other Diagnostic Code is applicable. VA treatment records throughout the period on appeal show complaints of right knee pain. The Veteran was provided a VA knee examination in November 2015. He reported pain on the front of his knee, a slight occasional limp, that the right knee occasionally gives out, and that it hurt to exercise and with long periods of sitting. Flareups of the right knee consisted of worsened pain with cracking sounds and grinding. Initial range of motion tests showed right knee flexion to 135 degrees and extension to 0 degrees, with no pain noted with either flexion or extension. Repetitive use testing showed flexion to 125 degrees and extension to 0 degrees, with pain causing the additional limited flexion. There was pain on palpation over the patella and patellar tendon. Muscle strength was full, and right knee joint stability testing was normal. No history of recurrent subluxation, patellar dislocation, lateral instability, or effusion was noted. No meniscal conditions or surgeries were identified. The Veteran occasionally used a brace or patellar band on his knee if running or lifting. Regarding functional impact on the Veteran's ability to perform occupational tasks, the examiner noted that going up and down stairs repeatedly, repetitive squatting, and kneeling would exacerbate the Veteran's knee condition. In the April 2016 Notice of Disagreement, the Veteran reported constant right knee pain, that he limited his lower body gym exercises, and that he occasionally limped due to the right knee giving out while walking. He had another VA knee examination in February 2017. He reported cracking and popping, and difficulty squatting, kneeling, with inclines, and uneven ground. There was pain ascending and descending stairs and with pivoting. He reported weakness and giving way but no locking. Pain was aggravated by activity. The examiner noted prolonged standing walking and running with repetitive bending, squatting, and climbing, as well as traversing inclines and uneven ground, caused increased discomfort and swelling. Initial range of motion tests showed right knee flexion to 140 degrees and extension to 0 degrees, with pain noted on both. Repetitive use testing showed flexion to 125 degrees and extension to 0 degrees, with pain causing the additional limited flexion. There was pain on palpation over the patella and patellar tendon. There was no evidence of pain with weightbearing. Repetitive use testing did not result in additional loss of range of motion. The examiner did note that pain, fatigue, weakness, and lack of endurance limited functional ability with use over time and flareups. However, the examiner indicated that flexion would be to 145 degrees and extension to 0 degrees after use over time. Muscle strength was full, and right knee joint stability testing was normal. No history of recurrent subluxation, patellar dislocation, lateral instability, or effusion was noted. No meniscal conditions or surgeries were identified. The Veteran occasionally used a brace to provide stability, decrease pain, and improve ambulation, and reported that he had purchased the brace himself. We acknowledge that the Board determined these two VA examinations were inadequate in the January 2019 remand. Specifically, the Board determined the November 2015 examination was not adequate to properly adjudicate the current status of his right knee disability, given that the examination report was over three years old and the Veteran alleged that his right knee had worsened since the examination. The February 2017 examination was not adequate because the examiner did not indicate whether the Veteran's knee was tested in non-weight bearing as required by Correia and because the examiner did not provide a rationale for the reason that limitations of range of motion during flareups and with repetitive motion could not be estimated. We note that the November 2015 examination report does not comply with Correia. However, there are no other contemporaneous range of motion measurements for the Veteran's right knee available. VA treatment records and the Veteran's statements generally reflect his ongoing complaints of knee pain, with little other information relevant on the issue of whether a higher or separate evaluation for the right knee is warranted. Furthermore, the inadequacies identified in the Board's prior remand do not render the entire examination reports inadequate, to include the initial range of motion measurements. The Veteran was provided a new VA knee examination in December 2019. He reported increased pain, stiffness, and weakness with moderate to severe daily symptoms. Functional impairment consisted of limited prolonged walking and standing, lifting and carrying, squatting, use of stairs, and activities such as jumping, biking, swimming, elliptical, and prolonged driving. Flareups were described as weekly severe pain, stiffness, and weakness. Initial range of motion tests showed right knee flexion to 110 degrees and extension to 0 degrees, with pain noted on flexion only. Repetitive use testing and repeated use over time did not cause additional limitation. The examiner estimated the flareups would cause flexion to be limited to 100 degrees, with no additional limitation of extension, due to pain, fatigue, weakness, and lack of endurance. There was pain on palpation over the patella and patellar tendon. There was no evidence of pain with weightbearing. Muscle strength was full, and right knee joint stability testing was normal. No history of recurrent subluxation, patellar dislocation, or lateral instability was noted, but there was weekly effusion. No meniscal conditions or surgeries were identified. The Veteran regularly used a brace. The examiner indicated that the Veteran's knee had been tested with weightbearing and non-weightbearing and on passive and active range of motion. Here, a rating in excess of 10 percent is not warranted for limited flexion under Diagnostic Code 5260. A 10 percent evaluation is typically warranted with flexion limited to 45 degrees. Flexion of the Veteran's right knee has been limited to 100 degrees at worst, as shown at the December 2019 examination. The current 10 percent evaluation was assigned by the Regional Office consistent with 38 C.F.R. § 4.59, providing for a compensable rating for painful motion that did not otherwise meet the criteria for a higher compensable rating based on limitation of motion under Diagnostic Code 5260. Nothing in the record suggests that flexion is functionally limited to 30 degrees or more, as is required for rating greater than 10 percent. There are no other range of motion measurements available during the period from September 11, 2019 forward. No credible evidence establishes flexion limited beyond 100 degrees, even accounting for flareups. The Board has also considered whether higher ratings are warranted based on functional loss due to pain, weakness, fatigability, or incoordination. We have considered the Veteran's reports of functional impairment in assessing the limitation of motion in this claim, including his reports of flareups. However, the evidence does not suggest that pain, weakness, fatigability, and incoordination result in disability beyond the 10 percent rating assigned. The flareups as described are found to be consistent with and accurately compensated by his rating based on painful flexion. DeLuca, 8 Vet. App. at, 204-7; 38 C.F.R. §§ 4.40, 4.45, 4.59. We find that the observations of skilled examiner are far more probative and more credible as to the degree of disability than the lay evidence, to the extent that he argues there is a higher level of impairment. Pertinently, the December 2019 examiner estimated flareups limited flexion to 100 degrees. There is no credible evidence of a higher level of impairment caused by flareups. The evidence of record more closely approximates the criteria for a 10 percent rating, but no higher, for limitation of flexion of the right knee. There is painful motion consistent with a 10 percent rating pursuant to 38 C.F.R. § 4.59, with indication of additional limited flexion beyond that assigned. Furthermore, a separate evaluation under any other applicable diagnostic code is not warranted. The old and new versions of Diagnostic Code 5257 are inapplicable because the preponderance of the evidence is against finding the Veteran has recurrent instability or subluxation of his right knee. We accept that the Veteran has worn braces on his right knee, which he has reported is partially to help with instability, and that he has reported that the right knee gives way. We also note that objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, and objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). However, the medical record is entirely silent for right knee instability. Most pertinently, three separate VA examinations have been negative for right knee instability, with all knee stability tests being normal. The Veteran has not reported that his right knee gives way or in unstable during medical treatment. Rather, right knee complaints consist solely of pain on motion. We find the observations of three separate skilled examiners to be more probative and far more credible as to whether the Veteran's right knee disability manifests in recurrent subluxation or instability. In sum, the assertions of instability are not credible when we compare the lay to medical evidence. A 10 percent rating could be warranted under the new version of Diagnostic Code 5257 for a diagnosed condition involving the patellofemoral complex, which the Veteran does have. However, a 10 percent rating still requires recurrent instability, which has not been demonstrated. Notably, no patellar dislocation was found on any of the three VA examinations, and all right knee stability testing has been negative. Diagnostic Code 5258 is inapplicable, as there is no evidence of any meniscus condition in the record. all VA examination reports have been negative for meniscus conditions, and there is no other evidence to the contrary. We accept that the Veteran has periods of pain and effusion into the knee, but there is no evidence of "locking" of the right knee. Furthermore, the rating in effect under Diagnostic Codes 5260 expressly considers painful motion. Diagnostic Code 5259 is also inapplicable, as there has not been removal of semilunar cartilage. A separate rating under Diagnostic Code 5261 would be permitted where limitation of extension was compensable, which is not the case here. See VAOPGCPREC 9-04 (2004). No limitation of extension of the right knee has been shown. VA examinations show the Veteran retains extension to zero degrees in the right knee, and there is no evidence to the contrary. A noncompensable rating under Diagnostic Code 5261 requires extension to be limited to 5 degrees, which has not been shown. We note that extension has been painful at times during the period on appeal. however, the Veteran is already in receipt of at least the minimum compensable rating for painful motion under Diagnostic Code 5260. A compensable rating under the provisions of 38 C.F.R. § 4.59 under Diagnostic Code 5261 for painful extension of the right knee is not warranted or appropriate, as he is already in receipt of compensable ratings for the right knee. Finally, there is no evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum. As such, Diagnostic Codes 5256, 5262, and 5263 do not apply in this case. In sum, the preponderance of the evidence is against a rating more than 10 percent for the Veteran's right knee patellar tendonitis with patellofemoral pain syndrome. There is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 55-56. 2. TDIU. As noted above, in January 2019 the Board determined that a claim for TDIU had been implicated by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), because VA examinations had shown interference with his employment due to his service-connected disabilities by demonstrating evidence of interference with numerous functions required for work. It is established VA policy that 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. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. Total disability ratings for compensation 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 either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). The Veteran is currently service connected for bilateral plantar fasciitis with bilateral pes planus, rated 10 percent from January 25, 2016 and 30 percent from February 17, 2017; lumbosacral strain with IVDS rated 20 percent from January 25, 2016, then 40 percent from February 17, 2017, then 20 percent again from February 1, 2020; left elbow tendonitis rated 10 percent from January 1, 2016; right knee patellar tendonitis with patellofemoral pain syndrome rated 10 percent from January 1, 2016; left knee patellofemoral pain syndrome rated 10 percent from January 1, 2016; tinnitus rated 10 percent from January 1, 2016; bilateral lower extremity radiculopathy rated 10 percent from February 17, 2017; and left shoulder strain rated 20 percent from January 20, 2020. Here, the Veteran met the schedular requirements for a TDIU effective February 17, 2017, when his lumbar spine rating was increased to 40 percent and he had additional service-connected disability that brought the overall rating to 80 percent. See 38 C.F.R. § 4.16 (a). While the rating for the back disability was reduced to 20 percent effective February 1, 2020, the Veteran continued to meet the schedular requirements for a TDIU. As noted above, disabilities of one or both lower extremities, including the bilateral factor, will be considered one disability for TDIU purposes. 38 C.F.R. § 4.16 (a). At the time the lumbar spine rating was reduced, the Veteran was service connected for bilateral plantar fasciitis with bilateral pes planus rated 30 percent each, right and left knee disabilities rated 10 percent each, and bilateral lower extremity radiculopathy rated 10 percent each. Considering a bilateral factor of 3.4 percent, the combined evaluation for these lower extremity disabilities is 60 percent. As such, despite the rating reduction for his lumbar spine disability, the Veteran continued to have one lower extremity disability ratable at 40 percent or more, and additional service-connected disability that kept his overall rating at 80 percent. After considering the evidence of record, the Board concludes that a TDIU is not warranted. Specifically, the Veteran has been employed as a construction worker for most of the time relevant to the TDIU claim. To the extent he has not been employed following separation, he was attending school and there is no evidence his service-connected disabilities caused him to be unable to secure or maintain employment. We note that the Veteran was sent a VA Form 21-8940 application for a TDIU in June 2020 that he did not complete and return. However, the record contains enough evidence to decide the claim for a TDIU. The Veteran separated from service in January 2016. A VA treatment record dated February 2016 indicates the Veteran was not employed but that he was a student. A June 2016 physical therapy consultation shows he was attending school for construction inspection. October 2016 telephone notes show the Veteran had been taking prescription Adderall to help him stay focused while attending school, and that his long-term goals included finishing school and to start working in construction. February 2017 VA examination reports show he was still attending school for construction inspection. A January 2018 treatment note shows the Veteran was getting all A's in school, planned to finish in the fall with a degree in construction inspection, and that he was enthusiastic about his occupational choice. A July 2019 physical therapy evaluation for his service-connected left shoulder disability shows he was doing construction work as a framer and drywaller. A March 2020 VA examination for his left shoulder shows that he attended school after separation and had been working in construction for the past two years. In November 2020 the Veteran reported that he was still working fulltime in construction, that he was going to school to complete a second associates degree, and that he had been learning welding. March 2021 primary care notes show the Veteran was in a trade school for welding. He reported the same at an April 2021 VA examination for his left shoulder. We acknowledge that the Veteran's service-connected musculoskeletal disabilities impact functional use. Nearly every VA examiner has described some impact on his ability to perform occupational tasks, especially given the physically demanding nature of his post-service occupation. For example, regarding the Veteran's back, the February 2017 examiner noted that prolonged sitting and standing with repetitive bending, stooping, and lifting will cause increased discomfort and pain. A November 2019 examiner noted his back would limit prolonged walking and standing, lifting, carrying, bending, squats, and using stairs and ladders. The occupational impact of the Veteran's right and left knee disabilities has been described in detail above. Without listing each VA examination report and all associated findings, we note that very similar descriptions regarding occupational impairment and impact on his ability to work are noted for each of the Veteran's musculoskeletal disabilities. Tinnitus has been noted as interfering with focus and concentration. However, the record is clear that the Veteran has either attended school or worked in construction since he separated from service. Although he may not have been employed while attending school, there is no indication that his service-connected disabilities contributed to his employment status at such time . Rather, he attended school for two to three years following his discharge from service, and thereafter worked in construction. While March 2021 VA records suggest the Veteran is not currently employed, he reported that he is attending trade school to become a welder. Again, there is no indication that service-connected disabilities contributed to an inability to obtain or maintain employment or caused him to stop working in construction. As noted in November 2020, he was considering a career change that appeared voluntary. We also note that the Veteran himself has not alleged or otherwise implicated that his service-connected disabilities render him unable to obtain or maintain substantially gainful employment. The record shows his service-connected disabilities have had little impact on his ability to obtain and maintain a substantially gainful occupation, or to attend school so that he could obtain the jobs he has had during the period on appeal. Given the above, the Veteran's service-connected disabilities do not cause him to be unable to secure or follow a substantially gainful occupation. Entitlement to a TDIU is denied. The preponderance of the evidence is against the claim. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED