Citation Nr: 21039947 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-28 421 DATE: July 1, 2021 ORDER A rating higher than 10 percent for chondromalacia of the left knee, based on limitation of flexion, is denied. A rating higher than 10 percent for limitation of extension of the left knee is denied. A rating higher than 10 percent for chondromalacia of the right knee, based on limitation of flexion, is denied. A rating higher than 10 percent for limitation of extension of the right knee is denied. A 40 percent rating for a thoracic spine disability is granted. A total rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's left knee disability manifested as painful, noncompensable limitation of motion on flexion and extension. 2. Throughout the entire period on appeal, the Veteran's right knee disability manifested as painful, noncompensable limitation of motion on flexion and extension. 3. The Veteran's thoracic spine disability manifested as, at worst, limitation of forward flexion of 50 percent, with an additional 20 degrees of limitation of forward flexion during flare-ups; but without ankylosis or incapacitating episodes. 4. The Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Throughout the entire period on appeal, the criteria for a rating higher than 10 percent for chondromalacia of the left knee, based on limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5014-5260. 2. Throughout the entire period on appeal, the criteria for a rating higher than 10 percent for limitation of extension of the left knee, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5261. 3. Throughout the entire period on appeal, the criteria for a rating higher than 10 percent for chondromalacia of the right knee, based on limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5014-5260. 4. Throughout the entire period on appeal, the criteria for a rating higher than 10 percent for limitation of extension of the right knee, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5261. 5. The criteria for a 40 percent rating, but no higher, for a thoracic spine disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, DC 5237. 6. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1980 to April 1987 and from March 1994 to March 1995. These matters were previously before the Board of Veterans' Appeals (Board) in October 2017 when the issues of increased ratings for left knee chondromalacia and a thoracic spine disability, service connection for a right knee condition, and a TDIU were remanded for further development. Further development having been completed; the matter is once again before the Board. In a September 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), service connection was granted for right knee chondromalacia, rated at 10 percent, effective April 23, 2009, and limitation of extension of the right knee, rated at 10 percent, effective September 24, 2020. The Veteran was also granted an additional rating for his service-connected left knee for limitation of extension, rated at 10 percent, effective September 24, 2020. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates. 1. A rating higher than 10 percent for chondromalacia of the left knee, based on limitation of flexion, is denied. 2. A rating higher than 10 percent for limitation of extension of the left knee is denied. The Veteran's left knee disability is currently evaluated at 10 percent for chondromalacia, based on limitation of flexion, and 10 percent for limitation of extension. He contends that the severity of his condition warrants higher ratings. The preponderance of the evidence is against the claim for higher ratings for the left knee disability, and the claim will be denied. Under DC 5014, osteomalacia is rated on limitation of motion of the affected part as degenerative arthritis. Under DC 5260, a 10 percent rating is assigned for limitation of flexion to 45 degrees. A 20 percent rating contemplates limitation of flexion to 30 degrees. A rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Separate evaluations may also be assigned for subluxation. See 38 C.F.R. § 4.71a, DC 5257. Under the pre-revised criteria, DC 5257 rated recurrent subluxation or lateral instability of the knee. A 10 percent rating was warranted for slight instability, a 20 percent rating was warranted or moderate instability, and the maximum 30 percent rating was warranted for severe instability. The criteria did not define what constituted slight, moderate, or severe recurrent subluxation or lateral instability. Under the amended criteria, DC 5257 also rates patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or walker warrants the maximum 30 percent rating. Under DC 5258, a 20 percent rating is warranted for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows VA to consider functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that weakened movement, excess fatigability, and incoordination may be considered. During an October 2009 VA examination, the Veteran reported recurrent pain, swelling and difficulty bending the knee. He denied flare-ups but reported that he intermittently used a cane and a brace. The Veteran reported the use of Tramadol, Ibuprofen, and "Icy-Hot to treat his symptoms., The examiner reported that the Veteran's knee "speed of motion" was decreased. The examiner noted that the Veteran was limited to standing for 15 to 30 minutes, and his ability to walk was limited to a quarter of a mile. The examiner noted subpatellar tenderness. The examiner noted no meniscus or other knee abnormalities. The examiner recorded range of motion (ROM) measurements as active flexion to 130 degrees and normal extension with objective evidence of pain on both movements. The examiner noted objective evidence of pain following repetitive motion without additional limitations after three repetitions. The examiner found no ankylosis. X-ray evidence showed moderate degenerative change in the patellofemoral compartment, minimal degenerative changes in the tibiofemoral compartment, and patellar tendinosis. During an August 2013 VA examination, the Veteran reported daily swelling and locking with persistent daily pain which was aggravated by prolonged walking and standing, and kneeling or squatting. He reported using Meloxicam, Vicodin, and Lidocaine patches to treat his symptoms and that he always used a brace. The Veteran denied flare-ups but reported pain on palpation. The examiner noted a diagnosis of tricompartmental degenerative joint disease (DJD) with patellar chondromalacia and meniscal tear. Initial ROM measurements were flexion to 120 degrees with objective evidence of painful motion at 120 degrees. ROM measurements on extension were not recorded, and the examiner noted no objective evidence of painful motion on extension. The examiner recorded repetitive ranges as flexion to 120 degrees and no limitation of extension. No additional limitation of ROM was noted after repetitive use testing. However, the examiner assessed that the Veteran had pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing was noted. The report indicates the Veteran's muscle strength was normal on flexion and extension. His joint stability testing revealed normal results on all tests performed. Patellar subluxation/dislocation was denied. No additional conditions were noted. The examiner reported the Veteran had not had any surgeries related to his left knee. The examiner noted that x-rays showed degenerative or traumatic arthritis with meniscal tear and patellar chondromalacia, but without evidence of patellar subluxation. The examiner noted that the condition would not affect sedentary employment. During the February 2017 Board hearing, the Veteran testified that he had swelling, pain, stiffness, and limitation of motion of his left knee, specifically with extension. A May 2018 MRI shows interval progression in the degenerative tearing of the medial meniscus posterior horn and body with high-grade medial joint compartment and patellar chondromalacia. During a September 2020 VA examination, the Veteran reported having flare-ups of his left knee disorder when lifting, carrying, climbing, sitting, and standing. He also reported "popping," clicking, or grinding sensations. The Veteran also said he had a generalized ache and increased pain every day with all activity. The Veteran reported that his symptoms are relieved somewhat by his medication, creams, resting, and the use of a reclining chair. The Veteran also reported functional loss or impairment because of limited motion due to pain. However, the Veteran denied a history of recurrent subluxation, lateral instability, and recurrent effusion. The September 2020 VA examiner noted a diagnosis of chondromalacia with degenerative meniscus tear. The examiner reported initial ROM measurements of flexion to 110 degrees and extension to 5 degrees with pain on both movements. The examiner noted that the Veteran has peripatellar pain on palpation and medial lateral joint line pain on palpation that is mild in severity. The examiner also reported objective evidence of crepitus. The Veteran performed repetitive use testing with at least three repetitions. No additional functional loss or ROM was noted. Repeated use over time testing was not performed. However, the examiner commented that pain was noted to significantly limit functional ability with repeated use over a period of time. The examiner described the additional limitation in terms of ROM as flexion to 100 degrees and extension to 5 degrees. The examination was not conducted during a flare-up. However, the examiner reported that pain significantly limited functional ability during a flare-up. The examiner described the additional limitation in terms of ROM as flexion to 95 degrees and extension to 10 degrees. The examiner reported that muscle strength was normal and there was no muscle atrophy or ankylosis. Joint stability testing results were negative, and the examiner noted no additional conditions. The examiner commented that meniscal tears were confirmed by radiology testing and caused pain. The examiner noted that the Veteran could perform sedentary employment. The preponderance of the evidence is against the assignment of increased ratings for left knee disorders and the claim will be denied. There is no evidence of flexion limited to 30 degrees or extension limited to 15 degrees. Rather, the evidence shows that the Veteran had flexion limited to, at worst, 95 degrees, and extension limited to, at worst, 10 degrees. Thus, higher ratings under DC 5260 and 5261 are not warranted. 38 C.F.R. § 4.71a, DC 5260, 5261. A higher rating under DC 5257, to include under the previous and amended criteria, is not warranted since the evidence does not show recurrent subluxation or instability of the knee. A higher rating under DC 5258 is also not warranted. Although the January 2012 MRI shows a small suprapatellar effusion, as the rest of the evidence discussed indicates, the clinical evaluations and imaging studies have otherwise consistently showed no joint effusion or dislocation. As there is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum, at any time during the period on appeal, DCs 5256, 5262, and 5263 are not for application in this case. Throughout the entire period on appeal, a rating higher than 10 percent is not warranted. Although the January 2012 MRI shows a small suprapatellar effusion and the August 2013 examiner noted frequent episodes of joint "locking," the remainder of the record does not show dislocation, or locking pain and effusion into the joint or tibia or fibular impairment, and ankylosis is consistently denied throughout the period; therefore, a rating more than 10 percent under DCs 5256, 5258 and 5262 is not warranted either. In addition, there is no evidence of joint instability or recurrent subluxation or lateral instability; therefore, a separate rating under DC 5257 is not warranted. The Board must also consider whether higher disability evaluations are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). The Board has considered the Veteran's subjective complaints, as well as whether there is additional functional loss due to lack of endurance, weakness, fatigue, and pain per 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206-07. These factors have been considered in awarding the respective separate 10 percent ratings pursuant to DC 5014, 5260, 5261. The Board notes that pain alone is not sufficient to warrant higher ratings, as pain may cause a functional loss but does not itself constitute functional loss. Mitchell, 25 Vet. App. at 38. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id; 38 C.F.R. § 4.40. The findings reflected in the treatment records and examination reports do not support ratings in excess of the ratings already in effect. Regarding the DeLuca factors, while it is clear that the Veteran experiences pain and limitations due to his left knee disability, the separate 10 percent disability ratings in effect take into consideration the Veteran's functional loss and limitations associated with his left knee disability. The Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide the basis for higher ratings for any period contemplated by this appeal. The Board must also consider the effect and frequency of flare-ups under Sharp v. Shulkin, 29 Vet. App. 26 (2017). Before the September 2020 VA examination, the Veteran denied flare-ups. The September 2020 examiner found that pain would limit functional ability of the left knee during flare-ups or repeated use over time and provided specific range of motion findings based on such flare-ups. However, the objective findings based on the Veteran's subjective complaints do not provide the basis for ratings in excess of the separate 10 percent ratings already in effect. The Board has considered whether additional ratings for neurological manifestations are warranted. However, because no neurological manifestations have been diagnosed, additional ratings for neurological manifestations are inapplicable in this case. 38 C.F.R. § 4.124a. Based on the above, separate ratings under the above discussed DCs, and ratings higher than 10 percent for left knee chondromalacia, based on limitation of flexion, and higher than 10 percent for limitation of extension of the left knee are not warranted and, the claim is denied. 3. A rating higher than 10 percent for chondromalacia of the right knee, based on limitation of flexion, is denied. 4. A rating higher than 10 percent for limitation of extension of the right knee is denied. The Veteran's right knee disability is currently evaluated at 10 percent for chondromalacia, based on limitation of flexion, and 10 percent for limitation of extension. He contends that the severity of his condition warrants higher ratings. The preponderance of the evidence is against the claim for higher ratings for the right knee disability, and the claim will be denied. During an October 2009 VA examination, the Veteran reported recurrent pain and swelling in the knee. The Veteran reported the use of Tramadol, Ibuprofen, and "Icy-Hot" to treat his symptoms. As he did with his left knee disorder, the Veteran told the examiner that he intermittently used a cane and a brace. However, effusions and flare-ups were denied. The examiner noted decreased speed of joint motion and noted that the Veteran is limited in standing for 15 to 30 minutes, and his ability to walk is limited to a quarter of a mile. The examiner also noted subpatellar tenderness. The examiner found no meniscus abnormality or any other abnormalities. There was no ankylosis. ROM measurements with active motion were flexion to 130 degrees and normal extension with objective evidence of pain on both movements. The examiner reported there was objective evidence of pain following repetitive motion, without additional limitations after three repetitions of ROM. X-ray evidence showed mild tricompartmental degenerative change without fracture or dislocation, and superior patellar spurs noted to indicate patellar tendinosis. The examiner noted that the Veteran's condition has a mild effect on ability to complete chores; moderate effect on ability to exercise; moderate effect on ability to engage in sports; moderate effect on ability to recreate; and mild effect on ability to drive. A January 2012 MRI of the right knee showed linear tearing involving the posterior horn and posterior body of the medial meniscus; mild tricompartmental osteoarthritis changes; and, intermediate to high-grade patellar chondromalacia. A May 2012 VA treatment record indicates a history of osteoarthritis. The Veteran was afforded a VA examination in August 2013. The Veteran reported the constant use of a brace and cane. However, he denied patellar subluxation and dislocation. Initial ROM measurements were flexion to 130 degrees with objective evidence of painful motion at 130 degrees. The examiner noted no limitation of extension and no objective evidence of painful motion on extension. ROM measurements after repetitive use were flexion to 130 degrees and no limitation of extension. The examiner observed that there was no additional limitation of ROM or functional loss or impairment after repetitive use testing. Muscle strength was normal, ("5/5"). Joint stability testing revealed normal results. No additional conditions were noted. The examiner noted that the Veteran had not had a meniscectomy. No other pertinent findings were noted. The examiner noted that the condition would not prevent sedentary employment. A March 2017 VA treatment record documents assessment of bilateral knee pain with osteoarthritis and meniscal tears. The Veteran reported sharp pain in the area of the kneecap that was constant, with an occasional "electric sensation" around the knee and leg. A May 2018 MRI shows interval worsening in the degenerative tearing of the medial meniscus posterior horn and body with intermediate to high grade patellar chondromalacia and intermediate grade medial joint compartment chondromalacia. During a September 2020 VA examination, the Veteran reported flare-ups when lifting, carrying, climbing, sitting, and standing. He also reported "popping," clicking, and grinding sensations in his right knee. He reported that he had a generalized ache and increased pain daily with all activity and that his symptoms are relieved somewhat by his medication, creams, resting, and the use of a reclining chair. The Veteran also reported functional loss or impairment in the form of limited motion due to pain. The examiner diagnosed chondromalacia with degenerative meniscus tear. Initial ROM measurements were flexion to 110 degrees and extension to 5 degrees. The examiner reported functional loss caused by pain on both flexion and extension. The examiner noted that the Veteran has peripatellar pain on palpation and medial lateral joint line pain on palpation that is mild in severity. Objective evidence of crepitus was also indicated. However, while repeated use over time testing was not performed, the examiner reported that pain was noted to significantly limit functional ability with repeated use over a period of time. The examiner described the additional limitation in terms of ROM as flexion to 100 degrees and extension to 5 degrees. The examination was not conducted during a flare-up. However, the examiner described the additional limitation of ROM during a flare up as flexion to 95 degrees and extension to 10 degrees. The examiner reported normal muscle strength on testing, "5/5." The examiner found no muscle atrophy or ankylosis and joint stability testing results were negative. No additional conditions were indicated. Meniscal tears were noted to cause pain and were confirmed via available imaging. No other pertinent findings were noted. The examiner noted that the Veteran is unable to lift, carry, bend, twist, climb, stoop, or stand or walk for prolonged periods of time due to the Veteran's condition. The examiner noted that sedentary employment is not limited. The examiner noted that there is evidence on objective examination of pain with weightbearing and non-weightbearing on passive motion in all terminal movements that is moderate to severe. There is no evidence of flexion limited to 30 degrees or extension limited to 15 degrees. Rather, the evidence shows that the Veteran had flexion limited to, at worst, 95 degrees, and extension limited to, at worst, 10 degrees. Higher ratings under DC 5260 and 5261 are not warranted. 38 C.F.R. § 4.71a, DC 5260, 5261. A higher rating under DC 5257, to include under the old and amended criteria, is not warranted since the evidence does not show recurrent subluxation or instability of the knee. A higher rating under DC 5258 is also not warranted since the clinical evaluations and imaging studies consistently show no joint effusion or dislocation. As there is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum, at any time during the period on appeal, DCs 5256, 5262, and 5263 are not applicable. Throughout the entire period on appeal, ratings higher than 10 percent are not warranted. The evidence does not show dislocation, or locking pain and effusion into the joint or tibia or fibular impairment, and ankylosis is consistently denied throughout the period; therefore, a rating more than 10 percent under DCs 5256, 5258 and 5262 is not warranted either. In addition, there is no evidence of joint instability or recurrent subluxation or lateral instability; therefore, a separate rating under DC 5257 is not warranted. The Board must also consider whether higher disability evaluations are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). In finding that higher evaluations are not warranted for any period, the Board has considered the Veteran's subjective complaints, as well as whether there is additional functional loss due to lack of endurance, weakness, fatigue, and pain per 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206-07. These factors have been taken into consideration in awarding the respective separate 10 percent ratings pursuant to DC 5014, 5260, 5261. As detailed hereinabove, consideration has been given to the Veteran's subjective complaints of pain and functional limitations and symptomatology due to prolonged walking and standing and kneeling or squatting. The Board notes that pain alone is not sufficient to warrant higher ratings, as pain may cause a functional loss but does not itself constitute functional loss. Mitchell, 25 Vet. App. at 38. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id; 38 C.F.R. § 4.40. The findings reflected in the treatment records and examination reports do not support ratings in excess of the ratings already in effect. In consideration of the DeLuca factors, while it is clear that the Veteran experiences pain and limitations due to his right knee disability, the separate 10 percent disability ratings in effect take into consideration the Veteran's functional loss and limitations associated with his right knee disability. The Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide the basis for higher ratings for any period contemplated by this appeal. With regard to consideration of flare-ups per Sharp v. Shulkin, 29 Vet. App. 26 (2017), prior to undergoing the examination in September 2020 the Veteran denied flare-ups. The September 2020 examiner found that pain would limit functional ability of the right knee during flare-ups or repeated use over time and provided specific range of motion findings based on such flare-ups but such objective findings based on the Veteran's subjective complaints does not provide the basis for ratings in excess of the separate 10 percent ratings already in effect. The Board has considered whether additional ratings for neurological manifestations are warranted. However, because no such manifestations have been diagnosed, additional ratings for neurological manifestations are inapplicable in this case. 38 C.F.R. § 4.124a. Based on the above, throughout the entire period on appeal, separate ratings under the above discussed DCs, and ratings higher than 10 percent for right knee chondromalacia, based on limitation of flexion, and higher than 10 percent for limitation of extension of the right knee are not warranted and, the claim is denied. 5. For the period beginning April 23, 2009, a 40 percent rating for a thoracic spine disability is granted. Throughout the entire period on appeal, the Veteran contends that his service-connected thoracic spine disability is worse than that which is contemplated by his current 20 percent rating. For the period from April 23, 2009, a 40 percent rating, but not higher, is warranted for the Veteran's thoracic spine disability. The General Rating Formula provides: a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). During the October 2009 VA examination, the Veteran reported persistent pain in the middle back for the past two years. He reported that he had to quit his job in retail sales because of his back disability. He used medication (Tramadol and Ibuprofen), a TENS unit, and physical therapy to treat his back pain. He had fatigue, stiffness, spasms, and pain in the middle back with prolonged standing and walking. He also had the pain daily and described the pain as sharp and severe and reported that it would last for hours. He also described a burning, shooting pain down his right leg. He could walk up to a quarter of a mile. He used a cane and wore a back brace. On physical examination, the Veteran walked with an antalgic gait using a cane. He had no abnormal spinal curvatures or thoracolumbar spine ankylosis. The examiner noted abnormalities of the thoracic sacrospinalis were pain with motion and tenderness. Motor, sensory, and reflex examinations were all normal. The Veteran's thoracolumbar ROM was flexion to 70 degrees; extension to 20 degrees; left lateral flexion and rotation to 30 degrees; and right lateral flexion and rotation to 25 degrees. The Veteran had pain on active ROM and pain after repetitive use, without additional limitation of motion. The Veteran was unemployed from his previous occupation as a retail manager and said that his back disability had significant effects on his previous occupation. The Veteran was afforded a VA examination in August 2013. He reported that he had flare-ups of pain which lasted several days. However, he then denied radiculopathy. The Veteran reported the constant use of a brace and cane and the regular use of a TENS unit. The examiner noted a diagnosis of IVDS of the thoracic spine at T-7 through T-9. The examiner noted the loss of approximately 20 degrees of forward flexion, extension, bilateral rotation, and bilateral flexion, during flare-ups due to pain. Initial ROM measurements were forward flexion to 50 degrees with objective evidence of painful motion at 50 degrees, extension to 20 degrees with objective evidence of painful motion at 20 degrees, bilateral flexion to 20 degrees with objective evidence of painful motion at 20 degrees, and bilateral rotation to 20 degrees with objective evidence of painful motion at 20 degrees. ROM measurements after repetitive use testing were the same as those recorded for initial ROM. However, the examiner noted that pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing contributes to functional loss, functional impairment and/or additional limitation of ROM after repetitive use. The examiner noted the Veteran had mild thoracic spine tenderness and guarding or muscle spasm. Muscle strength testing revealed normal results, "5/5" on all movements tested. Reflex, sensory, and straight leg raising tests were all normal. No other neurologic abnormalities were noted. The examiner noted that the Veteran has IVDS; however, the Veteran has not had any incapacitating episodes over the past 12 months due to IVDS. The constant use of a brace and cane were noted, and the regular use of a TENS unit was noted. No other pertinent finds were indicated. Available imaging studies were noted to show arthritis and disc protrusion at T-7 through T-9. In terms of functional impact, the examiner noted that the condition will impact all physical employment but not sedentary employment. The Veteran was afforded a VA examination in September 2020. The Veteran reported flare-ups. In particular, he reported that standing, sitting, walking, lifting, carrying, and climbing are all problematic. He also reported dull stiffness and limited motion. However, the Veteran denied radiculopathy was denied. The Veteran reported his symptoms happened every day, and all activity increases his symptoms. The regular use of a brace, cane, and walker were endorsed. No other pertinent findings were indicated. The Veteran reported the use of a shower chair. The Veteran reported the regular use of a brace, cane, and walker and use of Gabapentin, multiple creams, and patches for relief with sitting in chair, and relaxing and stretching daily. The examiner reported the Veteran had a herniated disc at T-6/7. Functional loss or impairment was described as limited motion due to pain. The Veteran reported initial ROM measurements as forward flexion to 60 degrees, extension to 0 degrees, bilateral flexion to 10 degrees, and bilateral rotation to 15 degrees. Pain was noted on all movements and was noted to cause a functional loss. Evidence of pain with weight bearing was also noted. Mild tenderness to palpation about the entire thoracolumbar spine was noted. The examiner noted that the Veteran could perform observed repetitive use testing, but he reported additional loss of function. The Veteran was not examined after repeated use over time. However, the examiner observed that pain significantly limited the Veteran's functional ability with repeated use over a period of time. The examiner described the additional limitation in terms of ROM as forward flexion to 50 degrees, extension to 0 degrees, bilateral flexion to 10 degrees, and bilateral rotation to 15 degrees. The examination was not conducted during a flare-up. However, the examiner observed that a flare up would significantly limit functional ability. The examiner described the additional limitation in terms of ROM as the following: forward flexion to 45 degrees, extension to 0 degrees, bilateral flexion to 10 degrees, and bilateral rotation to 10 degrees. Guarding and muscle spasm were denied. The examiner reported no additional factors contributing to the disability. Muscle strength was normal, five out of five. Muscle atrophy was denied. The reflex, sensory, and straight leg testing all revealed normal results. Ankylosis was denied. The examiner noted no other neurologic abnormalities or other pertinent findings. The examiner noted that the Veteran would not be expected to lift, carry, bend or twist, or have any labor activity due to back pain. However, the examiner noted that the Veteran's back does not limit him in sedentary employment, and that he has been retired since 2009 from a desk position. The examiner remarked that there is evidence on objective examination of pain with weightbearing and non-weightbearing, and the thoracolumbar spine disorder severity was moderate to severe. The examiner noted that there was no passive motion tested on examination. Although the examiner noted that the record shows that the Veteran has IVDS, the disorder was not found on examination. However, the examiner observed that the absence of IVDS on examination is not an indication that the Veteran does not have IVDS; rather, that IVDS was inactive during the examination. The examiner noted that the Veteran has not had any incapacitating episodes within the last year, a finding that was based on the examination, objective findings, subjective history given by the Veteran, the October 2009 VA examination, the August 2013 VA examination, and a review of the Veteran's February 2017 Board hearing. The Board will grant a 40 percent rating for the period. October 2009 VA examination indicates forward flexion limited to 70 degrees. However, the Veteran complained of persistent pain of the middle back ongoing for the previous two years. He reported that he had to quit his job in retail sales because of his back disability. He also reported that he experienced fatigue, stiffness, spasms and pain in the middle back with prolonged standing and walking, and he reported daily pain, described as sharp and severe, each episode lasting for several hours. He also reported radiating pain down the right leg, which was described as a burning, shooting pain. The Veteran reported that he could walk only to a quarter of a mile, and that he used a cane and back brace. The August 2013 VA examination indicates forward flexion limited to 50 degrees. However, the examiner noted that flare-ups cause an additional loss of approximately 20 degrees of forward flexion, extension, bilateral rotation, and bilateral flexion, due to pain. The September 2020 VA examination indicated forward flexion limited to 60 degrees. However, the examiner noted that pain significantly limits functional ability during a flare-up. In particular, the examiner noted that forward flexion is limited to 45 degrees during a flare-up. Throughout the entire period on appeal, the Veteran's symptoms more closely approximate a higher, 40 percent rating. Although the October 2009 VA examination shows forward flexion limited to 70 degrees, considering the provisions under 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, symptoms of the Veteran's condition suggest that the severity of his condition more closely approximates a higher, 40 percent rating. Additionally, the August 2013 VA examination shows forward flexion limited to 50 degrees; however, the examiner noted that flare-ups cause an additional loss of approximately 20 degrees of forward flexion. This evidence also shows that the severity of the Veteran's condition more closely approximates a higher, 40 percent rating. The September 2020 VA examination shows forward flexion limited to 60 degrees, and limited to 45 degrees during a flare-up. The September 2020 VA examination taken together with the August 2013 assessment of the impact of flare-ups on limitation on forward flexion, and severity of symptoms indicated in the October 2009 VA examination and throughout the remainder of the record, tends to show that the level of severity of the Veteran's condition more closely approximates a higher, 40 percent rating, throughout the period on appeal. The 40 percent rating in effect for limitation of motion symptomatology compensates him for limited and painful motion, and such rating is the highest assignable rating for limitation of motion without ankylosis. Throughout the entire period on appeal, a rating higher than 40 percent is not warranted, as the evidence does not show unfavorable ankylosis. 38 C.F.R. § 4.71a. The Board has considered whether a higher rating may be assigned under the Formula for Rating IVDS Based on Incapacitating Episodes. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1995). The criteria for IVDS rates the disability according to the number of "incapacitating episodes" suffered per year. 38 C.F.R. § 4.71a, DC 5243. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). While the record indicates that the Veterans has IVDS, there is no evidence that the Veteran's disability has resulted in any incapacitating episodes due to IVDS. Thus, a higher evaluation based on incapacitating episodes is not warranted. The Board has also considered flare-ups per Sharp v. Shulkin, 29 Vet. App. 26 (2017), and the limitation of motion during flare-ups. There is no basis for the assignment of a rating in excess of 40 percent in contemplation of symptomatology during flare-ups. The Board has also considered whether a separate rating may be assigned for bowel and bladder impairment. However, the lay and medical evidence is against a finding that the Veteran has any other neurological abnormality associated with his spine disability that warrants ratings for these disorders. In conclusion, a 40 percent rating, but no higher, is warranted for the period from April 23, 2009 to the present, and the claim is granted. In making this determination, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2018); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 6. A TDIU is granted. The Veteran contends that a TDIU rating is warranted due to his service-connected disabilities. For the period from April 23, 2009 to the present, a TDIU is warranted. Total disability will be considered to exist 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. 38 C.F.R. § 3.340. 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 service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Assignment of a TDUI evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Id. As discussed above in this decision, the Veteran's service-connected thoracic spine disability is rated as 40 percent disabling, from April 23, 2009 to the present. Also, as of April 23, 2009, the Veteran was rated as 30 percent for major depressive disorder; 10 percent for hypertension; and 10 percent for both right and left knee chondromalacia. Therefore, as of April 23, 2009, the Veteran meets the minimum schedular rating necessary for a TDIU. 38 C.F.R. § 4.16(a). The October 2009 VA examination reflects that the Veteran previously worked in retail as a manager, but had to quit his job due to his back condition, and has since been unemployed due to his thoracolumbar spine disability. The August 2013 VA knee and spine examinations document the examiner's assessment that the Veteran's left knee and thoracolumbar spine disabilities impact his ability to work in that his disabilities impact all physical employment but not sedentary employment. In the September 2020 VA examination for the Veteran's bilateral knee condition, in terms of functional impact, the examiner noted that the Veteran is unable to lift, carry, bend, twist, climb, stoop, or stand or walk for prolonged periods of time due to the Veteran's condition. The examiner noted that sedentary employment is not limited. In the September 2020 VA examination for the Veteran's thoracic spine condition, in terms of functional impact, the examiner noted that the Veteran would not be expected to lift, carry, bend or twist, or have any labor activity due to back pain. However, the examiner noted that the Veteran's back does not limit him in sedentary employment, and that he has been retired since 2009 from a desk position. In a February 2021 private vocational assessment, after a lengthy recitation of the record, the examiner, a certified rehabilitation counselor, opined that it is at least as likely as not that the Veteran's service-connected major depressive and anxiety disorder, lichen planus, back condition, and left knee condition render him unable to secure and follow substantially gainful employment, regardless of skill or exertional level, since at least March 2007 to the present. The record indicates that the Veteran was last employed in 2009. The record also indicates that the Veteran is significantly limited in the type of duties that he is able to engage in. Thus, viewed in the light most favorable to the Veteran, the record shows that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. Therefore, a TDIU is warranted, and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart 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.