Citation Nr: 21040104
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 14-01 097
DATE: July 2, 2021

ORDER

Entitlement to an evaluation in excess of 10 percent for right knee degenerative joint disease (DJD) is denied. 

Prior to June 5, 2012, referral for consideration of a total disability rating based on individual unemployability (TDIU) rating due to service-connected disabilities based on an extraschedular basis, is denied.

From June 5, 2012, entitlement to a schedular TDIU rating due to service-connected disabilities is denied.

FINDINGS OF FACT

1. During the period on appeal, the Veteran's right knee disorder resulted in flexion no worse than limited to 85 degrees and normal extension (0 degrees); the Veteran's right knee disorder did not result in ankylosis, recurrent subluxation, lateral instability, impairment of the tibia or fibula, or genu recurvatum.

2. Prior to June 5, 2012, the Veteran's disability ratings did not meet the schedular criteria for TDIU and referral for extraschedular consideration is not warranted because the evidence shows her service-connected disabilities would not have precluded substantially gainful employment.

3. From June 5, 2012, the Veteran's service-connected disabilities do not preclude her from securing and maintaining a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 10 percent for right knee DJD with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5003, 5260. 

2. Prior to June 5, 2012, referral for consideration of an extraschedular TDIU rating is not warranted.  38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.25.

3. From June 5, 2012, rhe criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.25.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1999 to January 2011.  The Veteran contends that she is entitled to increased ratings for her service-connected right knee disorder.  She also contends that she is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions from April 2012 and July 2015 by a Department of Veterans Affairs (VA) Regional Office (RO).  The case was previously before the Board in October 2017, October 2019, and March 2021, at which time the Board remanded the case for additional development.  The case now returns to the Board for further appellate review.

As an initial matter, the Board notes that the Veteran underwent a VA examination for his left knee on April 22, 2021, after the RO issued the latest supplemental statement of the case (SSOC) in March 2021.  The Board finds no prejudice proceeding here as the April 2021 VA examination was focused solely on the left knee and did not provide any information relevant to the right issue on appeal here.  With respect to the TDIU issue, while some incidental information was provided, the Board finds the information supplied by the April 2021 VA examiner was largely duplicative of the evidence already of record at the time of the March 2021 SSOC. 

I.	Increased Rating

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2.  All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 CFR § 4.31. 

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.  In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40.  

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).  In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016).  Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

1. Entitlement to an evaluation in excess of 10 percent for a right knee disorder is denied.

The Veteran contends that she is entitled to increased ratings for a right knee disorder.  The Veteran was granted service connection for right knee degenerative joint disease (DJD) in an April 2012 rating decision with a noncompensable (0 percent) evaluation under DC 5003-5260 for limitation of flexion, effective January 23, 2011.  In a February 2017 rating decision, the RO granted the Veteran an increased evaluation of 10 percent for her right knee disorder, effective January 23, 2011.   

VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders.  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).  VA General Counsel has stated that compensating a claimant for separate functional impairment under DCs 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). 

VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability.  When a knee disorder is already rated under DC 5257, the Veteran must also have limitation of motion under DCs 5260 or 5261 in order to obtain a separate rating for arthritis.  If the Veteran does not at least meet the criteria for a zero (0) percent rating under either of those codes, there is no additional disability for which a rating may be assigned.

In VAOPGCPREC 9-98, General Counsel also held that, if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59.  Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under DC 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  Absent x-ray findings of arthritis, limitation of motion should be considered under DCs 5260 and 5261.  Painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261. 

The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion.  Therefore, limitation of motion is a relevant consideration under DC 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered.  In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). 

In addition, the United States Court of Appeals for Veterans Claims has held that evaluation of a knee disability under DCs 5257 or 5261 or both does not, as a matter of law, preclude a separate evaluation of a meniscal disability of the same knee pursuant to DCs 5258 or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017).

Under DC 5010, arthritis due to trauma, substantiated by x-ray findings, is to be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71, DC 5010.  

DC 5003 states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which in this case would be DCs 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg).  When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003.

Normal range of motion (ROM) of the knee is to zero (0) degrees (full extension ROM) to 140 degrees (full flexion ROM). 38 C.F.R. § 4.71a, Plate II.

Under DC 5260, a noncompensable (0 percent) rating is warranted where flexion of the knee is limited to 60 degrees, and a 10 percent disability evaluation is warranted when flexion is limited to 45 degrees.  A 20 percent disability rating is warranted when flexion is limited to 30 degrees, and a 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260.  

Under DC 5261, a noncompensable (0 percent) rating is warranted when extension of the knee is limited to 5 degrees, and a 10 percent disability rating is warranted when extension of the knee is limited to 10 degrees.  A 20 percent disability rating is warranted when extension is limited to 15 degrees, and a 30 percent rating is warranted when extension limited to 20 degrees.  A 40 percent disability rating is warranted when extension is limited to 30 degrees, and a 50 percent disability rating is warranted when extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261.

Under DC 5257, a 10 percent disability rating may also be warranted where there is slight recurrent subluxation or lateral instability; a 20 percent rating may be warranted with moderate recurrent subluxation or lateral instability; and a 30 percent rating may be warranted with severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257.  

Under DC 5258, dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent disability rating.  38 C.F.R. § 4.71a, DC 5258.  Under DC 5259, symptomatic removal of semilunar cartilage warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, DC 5259.  

Disability ratings under DC 5256 may be warranted where there is ankylosis of the knee.  Disability ratings under DC 5262 may be warranted with impairment of the tibia and fibula, such as malunion of the tibia and fibula or nonunion of the tibia and fibula with loose motion.  Disability ratings under DC 5263 may be warranted where there is genu recurvatum. 

Hyphenated DCs are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27.  In the instant case, the Veteran's right knee disorder was rated in part under DC 5003, which pertains to degenerative arthritis.

At a February 2011 QTC examination, the Veteran reported bilateral knee DJD since 2006.  She reported symptoms of weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, and pain.  She did not report flare-ups or current treatment.  The examiner observed that the Veteran's right knee showed no signs of instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, subluxation, or guarding.  Range of motion (ROM) was normal with no additional limitations after repetitive use.  Stability was within normal limits.  The examiner concluded that there is no diagnosis for the right knee because there is no pathology to render a diagnosis.

At an October 2013 VA examination, the VA examiner diagnosed the Veteran with right knee patellar DJD.  The Veteran's right knee exhibited flexion to extension range of motion (ROM) of 140 degrees to 0 degrees with no objective evidence of painful motion.   The Veteran was able to perform repetitive use testing with three repetitions, and she did not have additional limitation in ROM of the knee following repetitive-use testing.  There was also functional loss and/or functional impairment of the knee.  The Veteran reported flare-ups and pain with running and climbing stairs.  There was tenderness or pain to palpation for joint line or soft tissues of the right knee.  Muscle strength and joint stability were normal, and there was no evidence or history of recurrent patellar subluxation or dislocation.  There were no meniscal conditions and no assistive devices.   The Veteran's right knee condition impacted her ability to work in that she had limitations with stairs. 

At an August 2016 VA examination, the VA examiner diagnosed the Veteran with right knee DJD.  The Veteran reported a dull achy pain that was worse with weather.  It was aggravated during bending and/or walking or standing for prolonged periods of time.  The Veteran's right knee exhibited flexion to extension range of motion (ROM) of 140 degrees to 0 degrees.  No pain was noted on examination.  There was no tenderness or pain to palpation for joint line or soft tissues of the right knee.  There was objective evidence of crepitus in the right knee.  The Veteran was able to perform repetitive use testing with three repetitions, and she did not have additional loss of function or ROM after repetitive-use testing.  

The Veteran was being examined after repetitive use over time.  The examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time.  The examination was not conducted during a flare-up, and the examination was neither medically consistent or inconsistent with Veteran's statements describing functional loss during flare-ups.  Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups.  Additional factors contributing to the right knee disability included interference with sitting and standing. 

Muscle strength and joint stability were normal; and there was no evidence of muscle atrophy, ankylosis, meniscal conditions.  There were no assistive devices.   The Veteran's right knee condition impacted her ability to perform occupational tasks in that she had difficulty sitting, walking, running, or standing for prolonged periods of time without pain. 

At an October 2018 VA examination, the VA examiner diagnosed the Veteran with right knee patellofemoral pain syndrome.  The Veteran reported that, over the past 18 months, she had notice increased frequency of swelling and more severe pain.  Current symptoms included aching, burning pain rated 6 out of 10.  The pain hurt more at night with grinding and popping.  The Veteran also reported one episode of instability a year ago with recurrence.  The Veteran's right knee exhibited flexion to extension range of motion (ROM) of 140 degrees to 0 degrees.  No pain was noted on examination.  There was tenderness or pain to palpation for joint line or soft tissues of the right knee.  Specifically, the right knee was tender to palpation rated 5 out of 10 in the anterior patella and superior medial border of the patella.  There was objective evidence of crepitus.  The Veteran was able to perform repetitive use testing with three repetitions, and she did not have additional loss of function or ROM after repetitive-use testing.  

The Veteran was not being examined after repetitive use over time.  The examiner reported that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with a flare-up.  The examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time.  The Veteran denied having flare-ups.  There was no objective evidence of pain on passive ROM or when the joint was used in non-weightbearing.

Muscle strength and joint stability were normal; and there was no evidence of muscle atrophy or ankylosis.  There were no assistive devices.  The examiner stated that the Veteran had a meniscal condition with bilateral frequent episodes of joint pain and bilateral frequent episodes of joint effusion.  The Veteran's right knee condition impacted her ability to perform occupational tasks in that she had pain with ambulation, and the condition limited her tasks.  At the time of this examination, the Veteran was reported to be a student, and she had lost less than one week of work time in the last 12 months.  

The October 2018 VA examiner stated that the new diagnosis of patellofemoral syndrome was a correction of the previous diagnosis.  The examiner observed that joint spaces were preserved bilaterally on a weight bearing X-Ray, and no degenerative changes were seen.  

In a January 2020 VA examination, the VA examiner diagnosed the Veteran with bilateral degenerative arthritis.  The Veteran reported pain, swelling, stiffness, and pain with walking up or down stairs; and she stated that she was not able to run or jog.  The Veteran's right knee exhibited flexion to extension range of motion (ROM) of 95 degrees to 0 degrees.  Pain was noted on examination and caused functional loss.  Flexion and extension ROM exhibited pain.  The ROM itself contributed to functional loss with difficulty running, walking for long periods, and going up or down stairs.  There was evidence of pain with weight-bearing.  There was objective evidence of localized tenderness or pain to palpation for joint line or soft tissues that was moderate in the lateral knee.  There was objective evidence of crepitus.  The Veteran was able to perform repetitive use testing with three repetitions, and she did not have additional loss of function or ROM after repetitive-use testing.  

The Veteran was not being examined after repetitive use over time, and the examination was medically consistent with the Veteran's statements describing functional loss with a repeated use over time.  Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time.  Pain caused this functional loss.  In terms of ROM, the Veteran's flexion to extension ROM with repeated use over time was 90 to 0 degrees.  The VA examiner stated that the Veteran's functional impairment of the right knee disability due to repetitive use over time included difficulty walking or running over an extended period of time, as well as difficulty bending, squatting, and going up and down the stairs.  These impairments were due to pain. 

The Veteran reported moderate flare-ups of the right knee that occur five or six times a month and last one to two days.  The flare-ups were precipitated by rain and exercise.  The examination was not conducted during a flare-up, but the examination was medically consistent with the Veteran's statements describing functional loss with a flare-up.  Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time.  Pain caused this functional loss.  In terms of ROM, the Veteran's flexion to extension ROM with a flare-up was 85 to 0 degrees.  The January 2020 VA examiner opined that these flare ups have persisted since the condition began and were never resolved at any point in time; therefore, the November 2018 VA examination was in error in stating that Veteran did not report flare-ups.

Muscle strength and joint stability were normal; and there was no evidence of muscle atrophy, ankylosis, or meniscal conditions.  There were no assistive devices.  The examiner observed that the Veteran had shin splints bilaterally but with no current symptoms; the shin splints occurred when the Veteran participated in physical activity.  There was objective evidence of pain on passive ROM or when the joint was used in non-weightbearing.  The Veteran's right knee condition impacted her ability to perform occupational tasks in that she had difficulty sitting, standing, walking, bending, squatting, and going down the stairs.  

In a January 2021 VA examination, the VA examiner reported that the Veteran had diagnoses of right knee DJD, degenerative arthritis, and patellofemoral pain syndrome.  The Veteran reported popping, soreness, and swelling bilaterally.  She also reported having functional loss or functional impairment of the knee with limitation going down the stairs.  The Veteran's right knee exhibited flexion to extension range of motion (ROM) of 100 degrees to 0 degrees.   The ROM itself did not contribute to functional loss.  Pain was noted on examination but did not result in or cause functional loss.  Flexion and extension ROM exhibited pain.  There was no objective evidence of tenderness or pain to palpation for joint line or soft tissues of the right knee.  There was no objective evidence of pain with weightbearing and no objective evidence of crepitus.  The Veteran was able to perform repetitive use testing with three repetitions, and she did not have additional loss of function or ROM after repetitive-use testing.  

The Veteran was not being examined after repetitive use over time.  The examiner reported that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with a flare-up.  Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time.  The Veteran denied having flare-ups.  There was no objective evidence of pain on passive ROM or when the joint was used in non-weightbearing.

Muscle strength and joint stability were normal; and there was no evidence of muscle atrophy, ankylosis, or meniscal conditions.  There were no assistive devices.  The Veteran's right knee condition did not impact her ability to perform occupational tasks.  

The Board has additionally reviewed the balance of the Veteran's other medical treatment records from the period on appeal.  The findings in the other medical treatment records are substantially similar to those noted in the medical examinations and treatment records described above.   

During the period on appeal, the Veteran was shown to have flexion no worse than limited to 85 degrees, even taking into account her reports of functional limitations due to flare-ups and/or repetitive motion.  The extension of her knee was consistently evaluated at 0 degrees (normal), even taking into account her reports of functional limitations due to flare-ups and/or repetitive motion.  As such, the Veteran does not have limitations of flexion ROM to a compensable degree under DC 5260 during the period on appeal. 38 C.F.R. § 4.71, DC 5260.  However, under DC 5003, she is still entitled to a 10 percent rating as she had some limitation of flexion ROM and evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003.  Thus, the Veteran has been appropriately assigned a 10 percent evaluation under DC 5260 for the period on appeal. 

The Board finds that higher ratings are not warranted under any other alternative provisions for the Veteran's right knee disorder.  Application of DC 5256 is inappropriate as there is no diagnosis of ankylosis of the knee and no evidence that she has limitations in her knee that are arguably analogous to ankylosis.  That is, there is no evidence that the Veteran suffers functional immobility of the right knee.  Additionally, there are no objective findings of impairment of the tibia and fibula, such as malunion or nonunion of the knee with loose motion; thus, there is no basis for disability ratings under DC 5262.  The Veteran's knee also does not have genu recurvatum; therefore, DC 5263 is not applicable here. 38 C.F.R. § 4.71a.

The Board acknowledges that, at the October 2018 VA examination, the VA examiner stated that the Veteran had symptoms of a meniscal condition.  However, no other examination of the knee showed evidence of such a condition, and there is no other evidence of meniscal conditions in the evidence of record.  Thus, the Board finds that the meniscal conditions found in the October 2018 VA examination were an outlier and not typical of the condition of the Veteran's right knee.  The evidence of record overall demonstrates that there is no objective evidence of any right knee meniscal conditions, so DCs 5258 are 5259 are not applicable in this case.  

The Board has also considered whether a higher rating is available under DC 5003.  A rating in excess of 10 percent under DC 5003 requires the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations.  This case concerns only one joint  the right knee  and Veteran has not reported incapacitating exacerbations of her symptoms. 38 C.F.R. § 4.45(f). Therefore, a higher rating is not supported under DC 5003 in this case.   

As noted above, the Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca v. Brown and Mitchell v. Shinseki. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).  An additional range of motion loss for pain, excess fatigability, decreased functional ability, etc. is not warranted for the right knee in this case.  In this regard, the Board observes that the Veteran has complained of pain in her right knee.  However, the Veteran's right knee flexion ROM has not been shown to be less than 85 degrees following repetitive motion and considering painful motion on any VA examination from the period on appeal.  Any additional limitation of ROM from pain, fatigue, weakness, or lack of endurance is already contemplated by the currently assigned rating under DC 5260.  The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an evaluation in excess of the currently assigned evaluations.

The Board acknowledges the Veteran's assertions that her right knee disorder warrants a higher disability rating.  However, the competent medical evidence offering specific determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal.  Thus, the Veteran's own assessment as to the severity of the symptoms and their relationship to the rating criteria are less probative than the opinions of medical practitioners who have specialized knowledge and skill in excess of her. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).

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

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

VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal.  See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).  

Therefore, the Board can only consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and for that timeframe, the criteria that is more favorable to the Veteran will be applied.

In this case, however, the relevant right knee medical evidence of record all pre-dates February 7, 2021.  Thus, only the old criteria applies in this case.

In sum, for the period on appeal, the preponderance of the evidence is against the assignment of an evaluation in excess of 10 percent for the Veteran's right knee DJD under DC 5260.  In reaching such a determination, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.7.

II.	Entitlement to a Total Disability Evaluation Based on Individual Unemployability (TDIU)

The Veteran contends that she is entitled to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).  

This claim stems from the Veteran's initial grant of service connection and rating for her right knee, effective January 23, 2011 (the day after separation from service).  She has contended throughout the pendency of this appeal that she is entitled to an increased rating for her knee and she has been unemployable since separation from service.  Thus, the Board will consider her TDIU claim from January 23, 2011.  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).

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

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

Prior to June 5, 2012, the Board finds the Veteran did not meet the schedular criteria for a TDIU rating.  38 C.F.R. § 4.16.  In particular, during this time frame, the Veteran was service connected for major depressive disorder (MDD), rated 10 percent disabling, effective January 23, 2011; status-post residuals pityriasis rosea, rated 30 percent disabling; a right knee disability, rated 10 percent disabling; allergic rhinitis, rated 10 percent disabling, temporomandibular joint dysfunction (TMJ) rated 10 percent disabling; sinusitis with headaches, rated 0 percent disabling; tachycardia, rated 0 percent disabling; and acne with hirsutism, rated 0 percent disabling.  The Veteran's combined evaluation was 50 percent, effective January 23, 2011.  The Veteran was then service connected for status-post cholecystectomy with residual scars, rated 10 percent disabling, effective May 31, 2012, raising her combined evaluation to 60 percent, effective May 31, 2012.  

From June 5, 2012, on the other hand, the Veteran did meet the TDIU schedular criteria.  Since June 5, 2012, the Veteran's combined disability evaluation has been between 80 percent and 90 percent, with numerous service-connected disabilities.

The Veteran's MDD increased to 50 percent disabling, effective June 5, 2012, and 70 percent disabling, effective November 1, 2018; her right knee DJD stayed at 10 percent for the entire period on appeal, but she was also granted service connection for left knee degenerative arthritis, rated at 10 percent disabling, effective December 15, 2020; allergic rhinitis, TMJ with bruxism, and tachycardia all stayed rated at 10 percent disabling since January 23, 2011, and the scars status-post cholecystectomy stayed at 10 percent since May 31, 2012; similarly, acne with hirsutism stayed rated noncompensable (0 percent) since January 23, 2011; the Veteran's status-post residuals pityriasis rosea was reduced to a noncompensable rating, effective June 1, 2016; sinusitis with headaches increased to 10 percent, effective November 1, 2018; iron deficiency anemia, rated noncompensable, effective November 1, 2018, and 10 percent, effective December 9, 2018; and tinnitus, rated 10 percent disabling, effective December 15, 2020. 

Prior to June 5, 2012, the Veteran did not meet the threshold criteria, but TDIU may still be assigned on a different basis.  The VA has established that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  The rating boards are required to submit all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director for the Compensation Service for extraschedular consideration.  Id.  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  Rather, the Board's sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence showing the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.

Here, therefore, the Board will consider two separate inquiries: (1) whether referral for extraschedular TDIU consideration is warranted for the time period prior to June 5, 2012, and (2) whether a schedular TDIU award is warranted for the time period from June 5, 2012.  For reasons outlined below, the Board finds that neither is warranted because the evidence at all times does not show the Veteran was unable to follow a substantially gainful occupation solely by reason of service-connected disabilities.

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

The term "substantially gainful occupation" is not defined in the rating schedule.  Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one.  Ray, 31 Vet. App. 58 (2019).  In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue.  Id.  Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  Id.  Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity.  Id.

Factual Background

The Veteran first submitted a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability (TDIU Application) in November 2013.  In the November 2013 TDIU Application, the Veteran stated that her headaches, cholecystectomy, and psychiatric disorder prevented her from securing or following any substantially gainful occupation.  She reported that her disability affected full-time employment on November 1, 2011.  She last worked full time on July 2, 2012, and she became too disabled to work on September 30, 2012.  The most she had ever earned in a year was $50,000.00 in 2010 when she worked in administration.  She reported that she worked for the U.S. Coast Guard as a civilian doing administrative work 40 hours a week from July 1, 2012 to September 22, 2012.  Her highest gross earnings per month in that position was $2,145.00.  She stated that she did not leave her last job because of her disability.  She reported that she tried to obtain employment since she became too disabled to work.  Specifically, she applied to be a summer intern with the U.S. Coast Guard in June 2012.  She reported that, after she became too disabled to work, she studied education at Regent University from August 2012 to the time of this application.   

In a December 2013 buddy statement, the Veteran's sister reported that the Veteran diligently applied for new jobs and searched for the first year after discharge from service, but she found little to no work despite her efforts.  It took over a year for her to land a temporary job. 

In a March 2014 statement, the Veteran stated she would like to get back in the workforce after therapy and treatment, but she did not feel she was suitable for work at this time. 

In an April 2014 VA Form 21-4192 Request for Employment Information in Connection with a Claim for Disability, the Veteran's U.S. Coast Guard employer reported that the Veteran worked for the U.S. Coast Guard from June 28, 2012 to September 22, 2012.  She performed work as an office automation clerk for 8 hours a day and 40 hours a week.  She earned $6,436.00 in the 12 months preceding the last date of employment.  The reason for termination was that the position was only a summer hire position.  Her last date of payment was October 4, 2012, and the amount of that payment was $1,072.80.   

In an April 2015 updated TDIU Application, the Veteran reported that her psychiatric disability prevents her from securing or following any substantially gainful occupation.  She stated that her disability affected her full-time employment on January 1, 2011, and she became too disabled to work on January 1, 2013. She stated that she had not tried to obtain employment since she became too disabled to work.  She reported that she completed college, and she did not have any other education or training before or since she became too disabled to work. 

In a May 2015 statement, the Veteran stated that she applied for a TDIU on the basis of being clinically depressed and unable to keep or get a job.  She stated she had not been able to work or find a job since she was discharged from active service in 2011.  

In a January 2012 VA Mental Health Consult, the Veteran reported that she was currently unemployed and looking for a job.  At the time, she was a student at Regent University pursuing a career in special education. 

At a February 2013 VA examination for the Veteran's mental disorders, the Veteran reported that, prior to active service, she graduated from high school with above-average grades.  She worked in fast food for five years, and she also worked in telemarketing for a year and as a bank teller for a year.  She had never been fired from a job.  While in service, she earned a bachelor's degree in business administration.  Since discharge from active service, she had a temporary job with the U.S. Coast Guard for three months.  She had not worked since then.  

At a March 2014 VA examination for mental disorders, the Veteran reported that she had a BA degree, and she attended college during and after active service.  She held a job for two months in the summer of 2012, and she worked for the U.S. Coast Guard.  She had been unable to find a job. 

In an April 2014 VA Mental Health Physician Note, the Veteran reported that she watched her two-year-old nephew for some income. 

At a July 2015 VA examination for mental disorders, the Veteran reported that she had recently completed a 6-month teaching apprenticeship.  She did not receive a good evaluation, and she believed that this was because she routinely felt anxious in public.  She stated that she was sad about not receiving a job as a teacher, and she indicated that she was going to try to find other work. 

At an April 2017 VA examination for mental disorders, the Veteran reported that she was employed as a teacher's aide at an alternative public school.  She worked with severely autistic children ages 13 to 17 years old.  When asked how her anxiety affects her on the job, she stated that she does not think it does affect her job, and she liked working with kids.  She stated that she had received favorable performance evaluations at work.  

At an August 2019 VA examination, the Veteran reported that she had a master's degree in education, and she had been working at Verizon for the past three years as a sales consultant.  She stated that she performs her work well and in good standing.  A January 2021 VA Primary Care Physician E&M Note also indicates that the Veteran works for Verizon. 

The evidence of record also indicates that the Veteran has received approval from her current employer for Family and Medical Leave Act (FMLA) leave for her health conditions.  For example, in a June 2019 letter, the Veteran was approved for FMLA leave for four to five episodes a month lasting one or two days each. 

Concerning the Veteran's psychiatric disorder, at a January 2011 examination, the examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood.  The Veteran stated that she did not want to go to work, and she did not want to communicate.   The Veteran reported that she developed depression and anxiety symptoms as a result of her continuing skin problems and the social problems they created.   Her symptoms included depressed mood, irritability, social isolation, difficulty concentrating, difficulty falling asleep, difficulty staying asleep, hypersomnia, unwanted weight gain, avoidance of contact with people, and feelings of inadequacy.  The Veteran was not violent, suicidal, homicidal, psychotic, manic, hypomanic, obsessive, or compulsive.  At this examination, the Veteran was open, forthcoming, polite, and cooperative.  She maintained eye contact.  Her speech and thought processes were goal-directed.  Her behavior was normal, and she was oriented in all spheres.  Her insight and judgment were good.  No memory deficits or psychomotor abnormalities were noted.  The examiner noted that the Veteran was able to comprehend and complete simple and complex commands.  The Veteran's mood and affect were depressed and anxious.  The examiner noted that she began to cry as she spoke about her skin problems.  The Veteran stated that she has to cover most of her body to avoid letting people see her skin lesions.  The Veteran stated that, except for her depression symptoms, the Veteran's work performance has always been good.  The examiner stated that the Veteran remained capable of working on a full-time basis from a mental health point of view.  She had difficulty establishing and maintaining social relationships as a result of her symptoms of the adjustment disorder, but she gets along well with people.  The Veteran was mentally capable of managing her benefit payments in her own best interest, and she was able to perform all activities of daily living, including hygiene. 

In a February 2013 VA examination for the Veteran's mental disorder, the VA examiner diagnosed the Veteran with generalized anxiety disorder and found that the Veteran had occupational and social impairment with reduced reliability and productivity.  The Veteran reported that she had a fair relationship with her parents and a good relationship with her two sisters and brother.  She had never married, but she was in a new intimate relationship of 5 months at the time of this examination.  She stated that this relationship was strained in part due to her emotional problems and also because it was a long-distance relationship.  She stated that she cut back on her social life when she got out of the service, but she blamed her finances for this.  The Veteran reported a sensation of feeling outside of herself or lightheadedness that will last several seconds, along with nervousness, insomnia (difficulty falling or staying asleep most nights), chronic headaches, daytime lethargy, chronic worrying, and irritability.  She traced her symptoms to a variety of stressors, including disciplinary actions in service, gallbladder problems, and her difficulty finding a job.  

The February 2013 VA examiner stated that the Veteran had symptoms of chronic sleep impairment, flattened affect, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances (including a work or work-like setting).  The examiner found no current symptoms consistent with depression, mania, lethality, psychosis, or panic.  There had been no suicide attempts or gestures.  She was not currently receiving therapy.  The irritability symptoms negatively impacted her relationships.  The Veteran stated that her mother and sister told her she can be difficult.  She denied that her symptoms had negatively impacted her work performance.  The Veteran was capable of managing her financial affairs. 

At a March 2014 VA examination for mental disorders, the VA examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood.  The examiner stated that the Veteran had symptoms of depression and anxiety.  The examiner opined that she remained depressed and anxious as a result of her unemployment and social isolation.  The examiner also opined that the Veteran would be capable to perform work from a mental health point of view.  She would not be able to provide a leadership role due to her social withdrawal, anxiety, and depression; however, she would be capable to perform simple and repetitive work in a structured setting.  The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with normal routine behavior, self-care, and conversation). 

The Veteran reported that she spends most of her time at home by herself.  She had not worked since 2012, and she asserted that she was unable to work due to her depression.  She stated that she has become increasingly anxious in the presence of other people due to her social isolation.  She did not participate in any significant social activities or hold a leadership position. 

The VA examiner stated that the Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work or a work like setting), inability to establish and maintain effective relationships. Increasing social isolation, occasional irritability, and spontaneous crying.  The Veteran continued to suffer from symptoms of depression and anxiety, and she was routinely anxious and sad.   She had difficulty falling and staying asleep, and her sleep quality was poor.  She was significantly socially withdrawn; she reported diminished participation in activities, and she spent most of her time by herself.   The Veteran reported that she saw a psychiatrist every three to four months.  She was referred to group therapy, but she felt uncomfortable ina group.  She had not been violent, suicidal, homicidal, psychotic, manic, hypomanic, obsessive, or compulsive.  She was capable of managing her financial affairs. 

In an April 2014 VA Mental Health Physician Note, the Veteran reported panic attacks sometimes when she thought about her employment and health situations. She also reported experiences of feeling detached from herself when she has to remind herself who she is.  These episodes happened once per month, but they had not affected her social or occupational functioning so far.

At a July 2015 VA examination for mental disorders, the VA examiner diagnosed the Veteran with generalized anxiety disorder.  The VA examiner opined that the Veteran continued to endorse suffering from symptoms of generalized anxiety disorder. She remained anxious most the time, and she was occasionally sad.  The examiner opined that the Veteran remained capable to perform work from a mental health perspective.  She would be anxious and withdrawn in public settings.  The VA examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal routine behavior, self-care and conversation).  At the time of this examination, the Veteran rented an apartment with her sister, and she reported that she spent most of her free time looking for work and reading.   

The VA examiner stated that the Veteran's symptoms included depressed mood, anxiety, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including work or a worklike setting).  Her symptoms of anxiety included anxious mood, irritability, diminished energy level, diminished participation her usual activities, and a feeling that she is not performing her job well.  The examiner stated that the Veteran was more likely to be anxious in public settings, and she was most likely to be anxious when she was the object of public scrutiny.   The Veteran was capable of managing her financial affairs. 

At an April 2017 VA examination, the VA examiner diagnosed the Veteran with moderate recurrent major depressive disorder (MDD).  During the two weeks preceding this examination, the Veteran reported experiencing depressed mood most of the day nearly every day, markedly diminished interest or pleasure in all or almost all activities, insomnia nearly every day, fatigue nearly every day, and diminished ability to think or concentrate.  The symptoms caused clinically significant distress or impairment in social, occupational, and other important areas of functioning.  The VA examiner stated that the Veteran had occupational and social impairment with reduced reliability and productivity. 

At the time of this examination, the Veteran was working as a teacher's aide working with children with special needs at an alternative public school.  When asked how her anxiety affects her on the job, she stated that she does not think it does affect her job, and she liked working with kids.  The Veteran reported that, when she is not working as a teacher's aide, she tended to stay home and watch TV.  She stated that she had been having increasing discomfort when out in public with anxiety, so she stayed to herself and her family.  She noted that she did not really have a social life.   

The VA examiner stated that the Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances (including work or a work-like setting).  The Veteran indicated that she experienced sleep disturbance marked by problems initiating and sustaining sleep, and she averaged approximately four hours of sleep per night.  She stated that she does not want to do anything.  She stated that she was unhappy all the time.  The Veteran was capable of managing her financial affairs. 

At an August 2019 VA examination for mental disorders, the VA examiner diagnosed the Veteran with a single episode of moderate MDD and found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal routine behavior, self-care and conversation).  The Veteran reported that she lived by herself, and she spent most of her time by herself watching television when she is not at work at Verizon.  The Veteran stated that she was withdrawn when she was not at work. 

The VA examiner stated that the Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships.  The VA examiner noted that the Veteran was anxious, but her predominant current symptoms were those of depression.  She has difficulty falling asleep and occasional difficulty remaining asleep.  She cried spontaneously approximately once a week.  The Veteran tried not to think about depressive factors, but she often could not suppress them.  She was occasionally irritable.  She reported diminished interest in her activities, and she stated that she has very little energy.  The VA examiner stated that the Veteran remained able to understand and complete simple and complex commands.  The examiner stated that the Veteran would not be able to provide a leadership if she were the object of scrutiny amongst other people.  

Concerning the Veteran's right knee degenerative joint disease (DJD), as described in the earlier section, at a February 2011 QTC examination, the Veteran reported symptoms of weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, and pain.  Range of motion (ROM) was normal with no additional limitations after repetitive use.  Stability was within normal limits.  The examiner concluded that there is no diagnosis for the right knee because there is no pathology to render a diagnosis.

At an October 2013 VA examination for the right knee, the VA examiner diagnosed the Veteran with right knee patellar DJD.  The Veteran's right knee exhibited flexion to extension range of motion (ROM) of 140 degrees to 0 degrees.  The Veteran was able to perform repetitive use testing with three repetitions, and she did not have additional limitation in ROM of the knee following repetitive-use testing.  The Veteran reported flare-ups and pain with running and climbing stairs.  There was tenderness or pain to palpation for joint line or soft tissues of the right knee.  The Veteran's right knee condition impacted her ability to work in that she had limitations with stairs. 

At an August 2016 VA examination for the right knee, the VA examiner diagnosed the Veteran with right knee DJD.  The Veteran reported a dull achy pain that was worse with weather.  It was aggravated during bending and/or walking or standing for prolonged periods of time.  The Veteran's right knee exhibited flexion to extension range of motion (ROM) of 140 degrees to 0 degrees.  There was objective evidence of crepitus.  The Veteran was able to perform repetitive use testing with three repetitions, and she did not have additional loss of function or ROM after repetitive-use testing.  Additional factors contributing to the right knee disability included interference with sitting and standing.  The Veteran's right knee condition impacted her ability to perform occupational tasks in that she had difficulty siting, walking, running, or standing for prolonged periods of time without pain. 

At an October 2018 VA examination for the right knee, the VA examiner diagnosed the Veteran with right knee patellofemoral pain syndrome.  The Veteran reported that, over the past 18 months, she had notice increased frequency of swelling and more severe pain.  Current symptoms included aching, burning pain rated 6 out of 10.  The Veteran's right knee exhibited flexion to extension range of motion (ROM) of 140 degrees to 0 degrees.  There was tenderness or pain to palpation for joint line or soft tissues of the right knee.  Specifically, the right knee was tender to palpation rated 5 out of 10 in the anterior patella and superior medial border of the patella.  There was objective evidence of crepitus.  The Veteran was able to perform repetitive use testing with three repetitions, and she did not have additional loss of function or ROM after repetitive-use testing.  The Veteran denied having flare-ups.  

In an October 2018 statement concerning individual unemployability, the examiner found that it is at least as likely as not that, related to the Veteran's service-connected right knee condition, the Veteran is able to perform a medium level of work in a normal 8-hour workday.  This would include exerting 20 to 50lbs of force occasionally, and/or 10 to 25lbs of force frequently, and/or greater than negligible up to 10lbs of force constantly to move objects. 

In a January 2020 VA examination, the VA examiner diagnosed the Veteran with bilateral degenerative arthritis.  The Veteran reported pain, swelling, stiffness, and pain with walking up or down stairs; and she stated that she was not able to run or jog.  The Veteran's right knee exhibited flexion to extension range of motion (ROM) of 95 degrees to 0 degrees.  Pain was noted on examination with flexion and extension ROM, and this pain caused functional loss.  The ROM itself contributed to functional loss with difficulty running, walking for long periods, and going up or down stairs.  There was evidence of pain with weight-bearing.  There was objective evidence of localized tenderness or pain to palpation for joint line or soft tissues that was moderate in the lateral knee.  There was objective evidence of crepitus.  The Veteran was able to perform repetitive use testing with three repetitions, and she did not have additional loss of function or ROM after repetitive-use testing.  

Pain significantly limited functional ability with repeated use over time.  In terms of ROM, the Veteran's flexion to extension ROM with repeated use over time was 90 to 0 degrees.  The VA examiner stated that the Veteran's functional impairment of the right knee disability due to repetitive use over time included difficulty walking or running over an extended period of time, as well as difficulty bending, squatting, and going up and down the stairs.  These impairments were due to pain. 

The Veteran reported moderate flare-ups of the right knee that occurred five or six times a month and lasted one to two days.  The flare-ups were precipitated by rain and exercise.  The examination was not conducted during a flare-up, but the examination was medically consistent with the Veteran's statements describing functional loss with a flare-up.  Pain significantly limited functional ability with repeated use over time.  In terms of ROM, the Veteran's flexion to extension ROM with a flare-up was 85 to 0 degrees.  

There was objective evidence of pain on passive ROM or when the joint was used in non-weightbearing.  The Veteran's right knee condition impacted her ability to perform occupational tasks in that she had difficulty sitting, standing, walking, bending, squatting, and going down the stairs.  

In a January 2021 VA examination for the right knee, the VA examiner reported that the Veteran had diagnoses of right knee DJD, degenerative arthritis, and patellofemoral pain syndrome.  The Veteran reported popping, soreness, and swelling bilaterally.  She also reported having functional loss or functional impairment of the knee with limitation going down the stairs.  The Veteran's right knee exhibited flexion to extension range of motion (ROM) of 100 degrees to 0 degrees.  The ROM itself did not contribute to functional loss.  Pain was noted on examination with flexion and extension ROM, but the pain did not result in or cause functional loss.  There was no objective evidence of tenderness or pain to palpation for joint line or soft tissues of the right knee.  There was no objective evidence of pain with weightbearing or crepitus.  The Veteran was able to perform repetitive use testing with three repetitions, and she did not have additional loss of function or ROM after repetitive-use testing.  The Veteran denied having flare-ups.  The Veteran's right knee condition did not impact her ability to perform occupational tasks.  

Concerning the Veteran's left knee, at an April 2021 VA examination for the left knee, the VA examiner diagnosed the Veteran with left knee degenerative arthritis.  The Veteran's left knee exhibited flexion to extension range of motion (ROM) of 120 degrees to 0 degrees.  The ROM itself contributed to functional loss with trouble walking, standing, stooping, and kneeling.  Flexion ROM exhibited pain.  Passive ROM was the same as active ROM.  There was evidence of pain with weightbearing and active motion.  There was tenderness or pain to palpation for joint line or soft tissues of the left knee that was mild in the anterior patella.  There was objective evidence of crepitus.  The Veteran was able to perform repetitive use testing with three repetitions, and she did have additional loss of function or ROM after repetitive-use testing.  In terms of ROM, the Veteran's post-test flexion to extension ROM was 100 to 0 degrees.  Pain caused this functional loss.  

The Veteran was not being examined after repetitive use over time.  Pain significantly limited functional ability with repeated use over time.  In terms of ROM, the Veteran's flexion to extension ROM after repeated use over time was 100 to 0 degrees.  

The Veteran reported mild daily flare-ups of the left knee with dull, achy pain that lasted several hours.  The flare-ups were precipitated by weight-bearing, and they caused trouble walking, standing, stooping, and kneeling.  The examination was not conducted during a flare-up.  Pain significantly limited functional ability with flare-ups.  In terms of ROM, the Veteran's flexion to extension ROM during a flare-up was 100 to 0 degrees.  

There was no muscle atrophy, ankylosis, or joint instability; and the Veteran did not use assistive devices.  The Veteran's left knee impacted her ability to perform occupational tasks in that she had limited walking, standing, stooping, and kneeling capabilities.  

Concerning the Veteran's skin conditions, at a February 2011 QTC examination, the Veteran reported a single episode of pityriasis rosea since 2007.  The condition did not involve any areas exposed to the sun.  She reported that she does not experience any functional impairment from this condition.  The examiner stated that there was no diagnosis of pityriasis rosea because there is no pathology to render a diagnosis.

The Veteran also reported hirsutism manifested by a few isolated facial course hairs.  The condition involved areas that are exposed to the sun, including the face and chin.  It did not include the hands, the neck, or the head.  She had not undergone treatment in the last 12 months.  She also reported a past history of facial acne vulgaris.  She reported that she does not experience any functional impairment from this condition.  The examiner stated that there was no diagnosis of hirsutism or acne because there is no pathology to render a diagnosis.   

At a March 2016 VA examination for the Veteran's skin condition, the VA examiner diagnosed the Veteran with status-post pityriasis rosea.  The Veteran reported that she had post hyperpigmentation, which had cleared up since 2012 or 2013; and the scars had since resolved.  The examiner also found that the Veteran had superficial acne that affected less than 40 percent of the face and neck, as well as other body areas.  The Veteran's skin condition did not affect her ability to work.  The VA examiner stated that, at this time the Veteran's pityriasis rosea is quiescent.

At a January 2017 VA examination for the Veteran's skin condition, the VA examiner diagnosed the Veteran with acne and hirsutism.  The examiner stated that the Veteran had hyperpigmented scars from acne lesions scattered on the face.  The Veteran had superficial acne and deep acne that affected less than 40 percent of the face and neck.  The Veteran's skin condition did not impact her ability to work. 

Concerning the Veteran's temporomandibular joint syndrome (TMJ) with bruxism, at a January 2011 VA examination for the Veteran's dental condition, the VA examiner diagnosed the Veteran with TMJ with bruxism.  The condition was due to stress, and it included symptoms of chipping teeth, as well as pain and a sore jaw in the morning.  The Veteran reported clenching and grinding teeth that occurred mostly at night and sometimes during the day.  She described pain rated as 5 out of 10 that occurred intermittently, as often as three times a week, with each time lasting one or two hours.  The examiner stated that the Veteran's usual occupation and daily activities were not affected by her condition. 

At an August 2016 VA examination for the Veteran's oral and dental conditions, the VA examiner diagnosed her with bruxism.  The condition began with teeth grinding, and the condition had reportedly gotten worse with more clinching and soreness.  The examiner stated that the Veteran's condition did not impact her ability to work. 

At an August 2016 VA examination for TMJ, the VA examiner diagnosed the Veteran with bilateral TMJ syndrome.  The Veteran reported flare-ups with ear pain and headaches.  The Veteran's TMJ did not impact her ability to work. 

At an October 2018 VA examination for TMJ, the VA examiner diagnosed the Veteran with TMJ with bruxism.  No flare-ups, functional loss, or functional impairment were reported.  The TMJ did not impact the Veteran's ability to work. In a related Individual Unemployability statement, the examiner found that the TMJ required no restrictions for job activities. 

Concerning the Veteran's status-post cholecystectomy with residual scars, at a February 2013 VA examination for the Veteran's gallbladder conditions, the VA examiner diagnosed the Veteran with status-post cholecystectomy.  Current symptoms included loose bowel movements or mild diarrhea about three times a week, as well as a burning sensation in the substernal area after eating a lot.  She also had normal bowel movements twice a day.  The Veteran's gallbladder condition did not impact her ability to work.  She also had three scars related to the cholecystectomy.  The scars were not painful or unstable, and they did not impact her ability to work. 

At a March 2014 VA examination for the gallbladder condition, the VA examiner reported the Veteran's cholecystectomy.  The Veteran had no current symptoms. The examiner found that the Veteran's condition did not impact her ability to work, and the condition was in remission.  The related scars also did not impact the Veteran's ability to work. 

Concerning the Veteran's tachycardia, at a February 2011 QTC examination, the Veteran reported that she had experienced tachycardia for seven years.  She stated that the arrhythmias occur intermittently as often as once a month, and each time lasting a few seconds.  The examiner stated that the arrythmia had not been confirmed by EKG or Holter monitor.  The Veteran stated that she was not receiving any other treatment for the condition.  She reported that she does not experience any functional impairment from this condition.  The examiner stated that there was no diagnosis of tachycardia because there is no pathology to render a diagnosis.   

At an October 2013 VA examination for the Veteran's heart condition, the VA examiner diagnosed the Veteran with valvular heart disease and sinus tachycardia.  The examiner noted that the Veteran had an irregular rhythm described as slightly tachycardic.  The VA examiner found that the Veteran's heart condition did not impact her ability to work.  

Concerning the Veteran's sinusitis with headaches and allergic rhinitis, at a February 2011 QTC examination, the Veteran reported allergic rhinitis for the past 11 years with interference breathing through the nose.  The examiner stated that there was no diagnosis of sinusitis or allergic rhinitis because there is no pathology to render a diagnosis. 

The Veteran also reported headaches with pain and pressure in her head.  When the headaches occur, she has to stay in bed, and she is unable to do anything.  She stated that the severity of the headaches was 9 out of 10.  She experienced the headaches on average twice a month, and they lasted for seven hours.  The Veteran was not receiving treatment for this condition.  She reported that she does not experience any functional impairment from this condition.  The examiner stated that there was no diagnosis of headaches because there is no pathology to render a diagnosis.

In a December 2011 VA Telephone Encounter Note, the Veteran complained of sinus congestion for three days.  She stated she feels her sinus clogged in her head and nasal passages.  In an Addendum from the same day, the Veteran stated that she thought she had a sinus infection and needed some antibiotics.  She reported that she gets sinus infections four times a year.  

At an October 2013 VA examination for the Veteran's sinus condition, the VA examiner diagnosed the Veteran with chronic sinusitis and intermittent recurrent seasonal allergic rhinitis.  The sinusitis was maxillary.  The Veteran's sinus condition did not impact her ability to work.

At a March 2014 VA examination for the Veteran's sinus condition, the VA examiner diagnosed the Veteran with chronic sinusitis.  The Veteran reported symptoms of headaches.  The condition did not impact the Veteran's ability to work. 

At a January 2017 VA examination for the Veteran's sinus condition, the VA examiner diagnosed the Veteran with chronic sinusitis and allergic rhinitis.  The Veteran reported that she gets sinus infections requiring antibiotics about twice a year.  She reported symptoms of headaches, pain of the affected sinus, tenderness of the affected sinus area, and purulent discharge.  She reported that she had experienced two non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months.  With the Veteran's rhinitis, there was a greater than 50 percent obstruction of the nasal passage on both sides.  The Veteran's sinus or nose condition did not impact her ability to work. 

In a May 2018 private treatment record, the Veteran reported migraine headaches with increasing frequency.  The Veteran stated that, during a migraine, she is unable to drive or perform duties at work.  The examiner opined that the Veteran may need a reduced schedule or leave from work with such exacerbations.  

At a June 2019 VA examination for the sinus condition, the VA examiner diagnosed the Veteran with sinusitis with headaches.  The Veteran reported increasing headaches, and she stated that she had been treated for sinusitis three times in the past year.  Current symptoms included intermittent sinus pressure with pressure behind the eyes three or four times a month, as well as headaches four or five times a month.  The Veteran had experienced three non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months.  Due to rhinitis, there was a greater than 50 percent obstruction of the nasal passage on both sides.  The Veteran's sinus or nose condition impacted her ability to work in that she had lost four days from work in the last 12 months.  The examiner found that the Veteran is able to perform active and sedentary work without limitations. 

Concerning the Veteran's iron deficiency anemia, at an October 2019 VA examination, the VA examiner diagnosed the Veteran with iron deficiency anemia requiring continuous treatment with oral supplementation.  The condition did not impact the Veteran's ability to work. 

Concerning the Veteran's tinnitus, at a January 2020 VA examination, the Veteran reported recurrent tinnitus that was intermittent; it occurred once or twice a week and lasted for minutes at a time.  The tinnitus impacted the Veteran's ability to work in that she experienced intermittent ringing.  The Veteran stated that she thought it was normal. 

The Board has additionally reviewed the balance of the Veteran's other medical treatment records from the period on appeal.  The findings in the other medical treatment records are substantially similar to those noted in the medical examinations and treatment records described above.   

3. Referral for consideration of a TDIU rating due to service-connected disabilities prior to June 5, 2012, on an extraschedular basis, is denied.

4. Entitlement to a TDIU rating on a schedular basis from June 5, 2012, is denied.

Based on the evidence as described above, the Board finds that, although the Veteran's service-connected disabilities may have negatively impacted her employability during the period on appeal, they did not preclude her from securing and maintaining a substantially gainful occupation.  Thus, neither a referral for extraschedular consideration prior to June 5, 2012, is warranted, nor is entitlement to a TDIU rating from June 5, 2012, warranted.

From an economic standpoint, the evidence of record indicates the Veteran has work history in administrative and/or clerical work.  She also reported obtaining a master's degree in education with experience as a teacher's aide working with children with special needs.  She has stated that she enjoys working with children.  She also has a bachelor's degree and experience in business administration.  She is currently working as a sales consultant with Verizon, as she has done since around 2016.  Although she has reported difficulties finding work, the Board cannot take into account these general difficulties in actually finding employment.  Rather, the pertinent inquiry is whether she is capable of performing this type of suitable work (i.e., administrative and/or clerical work; teaching; business administration) notwithstanding the non-economic components: the physical and mental limitations stemming from her service-connected disabilities.  Cf. Ray, 31 Vet. App. 58.  In this case, the evidence suggests at all times during the appeal she can.  Thus, neither a referral nor a grant of TDIU is warranted.

In that regard, as outlined by the medical evidence above, throughout the appellate time frame, the Veteran's physical limitations stemming from her service-connected disabilities, include difficulty with prolonged sitting, standing, walking, or running for prolonged periods of time without pain, as well as difficulty bending, squatting, and going up and down the stairs. While these physical limitations would certainly pose challenges for her work, there is nothing in the record that suggests she would be precluded from administrative, clerical, and/or sedentary type of teaching/administrative work.

As outlined by the medical evidence above, throughout the appellate time frame, the Veteran's mental abilities were limited by service-connected disabilities, to include depressed mood, anxiety, chronic sleep impairment, irritability, flattened affect, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including work or a work like setting).  

Once again, the Board has no doubt the Veteran's mental health disability would pose challenges with her employment, but the evidence does not suggest it would preclude her ability to maintain suitable work.

In fact, during the period on appeal, the Veteran has not been precluded from performing work that primarily involved desk work and only required minimal physical exertion, and she has not been prevented from participating in occupations that allow for frequent breaks and other accommodations for her physical limitations.  She also has not been precluded from participating in occupations that do not require frequent social interaction, and she could still perform work that allowed her to work largely alone.  The Veteran's educational and work background is not so limited as to have precluded occupations of the nature described above during the period on appeal.   

The preponderance of the evidence from the period on appeal does not demonstrate that the Veteran's symptoms from her service-connected disorders would have prevented her from securing or maintaining gainful employment.  The Board finds that the Veteran's service-connected disabilities have not precluded her from performing the physical and mental acts necessary to secure and maintain a substantially gainful occupation consistent with her educational and occupational background. Therefore, based on the foregoing, the Board finds that an award of a TDIU for the period on appeal is not warranted in this case.  In reaching such a determination, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

 

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Dawn A. Leung, Associate Counsel

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