Citation Nr: 24010366 Decision Date: 03/04/24 Archive Date: 03/04/24 DOCKET NO. 20-14 235 DATE: March 4, 2024 ORDER Entitlement to an initial rating higher than 10 percent for lumbosacral strain is denied. Entitlement to an initial rating higher than 10 percent for right knee patellofemoral pain syndrome with arthritis, manifested by limitation of motion, is denied. Entitlement to an initial rating higher than 10 percent for right knee instability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Whether a separate rating is warranted for neurological impairment, as a manifestation of the service-connected lumbosacral strain, is remanded. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder is remanded. FINDINGS OF FACT 1. The Veteran's lumbosacral strain is not manifested by forward flexion to 60 degrees or less, combined range of motion to 120 degrees or less, muscle spasms or tenderness resulting in an abnormal gait or abnormal spinal contour, or intervertebral disc syndrome (IVDS). 2. The Veteran's right knee disability is manifested by normal extension and painful flexion limited to 115 degrees, at worst. There is no evidence of flexion limited to 30 degrees or less. 3. The Veteran does not have moderate recurrent subluxation or lateral instability in the right knee, or persistent instability due to any sprain or ligament tear. 4. Resolving any reasonable doubt in the Veteran's favor, he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating higher than 10 percent for lumbosacral strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for entitlement to an initial rating higher than 10 percent for right knee patellofemoral pain syndrome with arthritis, manifested by limitation of flexion, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. The criteria for entitlement to an initial rating higher than 10 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5257. 4. Resolving any reasonable doubt in favor of the Veteran, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to July 1970 and from June 1974 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2018 and December 2019 of a Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). The Veteran and his spouse testified in a videoconference hearing in March 2022 before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In February 2023, the Board granted a separate rating of 10 percent for right knee instability, and remanded the remaining issues on appeal, as titled in this decision, to obtain VA examinations and private records, and to review newly generated VA evidence. There has since been substantial compliance with those remand directives with respect to the lumbar strain and right knee disabilities. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claims under the former criteria prior to February 7, 2021 and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 1. Entitlement to an initial rating higher than 10 percent for lumbosacral strain The Veteran's lumbosacral strain is rated as 10 percent disabling based on noncompensable yet painful motion under DC 5237. See June 2018 rating decision; 38 C.F.R. § 4.71a, DC 5237. The Veteran generally asserts entitlement to a higher rating for his lumbar strain. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 available when there is forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is available 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 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 combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2). The Court has recently held that the requirement of ankylosis in the General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis, i.e., functional immobility of the joint, during a flare-up. See Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the Formula for Rating IVDS, a 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. For these purposes an "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id at Note (1). No changes were made to DC 5237 under the amended musculoskeletal rating criteria. Turning to the evidence, a February 2017 private hospitalization record reflects that the Veteran reported severe lower back pain, mostly on the right side, which started when he fell that morning due to a seizure. The discharge diagnosis was partial symptomatic epilepsy with complex partial seizure and chronic bilateral low back pain without sciatica. The Veteran was seen a few days later in February 2017 for follow-up of the hospitalization by his physician. The treatment record indicates the Veteran had chronic low back pain that was worse since the fall related to the seizure. He did not report radiation, numbness, or tingling. He did have sharp pain with movement. An x-ray of the pelvis showed spondylosis of the lower lumbar spine. On examination, the Veteran had decreased range of motion (ROM) of the back, particularly on flexion and extension, negative straight leg raise test, bilaterally, and pain on palpation of the lower lumbar spine. He was treated with pain medication. A May 2017 private treatment record indicates review was negative for myalgias and arthralgias of the musculoskeletal system, and the Veteran had normal ROM of the musculoskeletal system, and normal strength and reflexes. At a January 2018 visit, the Veteran denied back pain on review of systems. In May 2018, the Veteran underwent a VA thoracolumbar spine examination. On the June 2018 report of examination, the examiner noted a diagnosis of lumbosacral strain. The Veteran reported that his symptoms began in 2011, following his right foot surgery, and that he could not run or walk as much as he had been able to two years earlier. He reported flare-ups as going to the chiropractor two to four times per year, getting poor sleep, getting two new mattresses in a year, and sleeping on the floor. ROM testing of the lumbar spine revealed flexion to 90 degrees; extension to 30 degrees; lateral flexion to 25 degrees; bilaterally; and lateral rotation to 25 degrees; bilaterally. The combined ROM was 220 degrees. There was pain with right lateral flexion and rotation which did not result in functional loss. The Veteran was able to perform repetitive use testing with no additional loss of function or ROM after three repetitions. As the Veteran was not examined after repeated use over time or during a flare-up, the examiner was unable to say without speculation whether pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability after repeated use over time or during flare-ups. The VA examiner noted that muscle strength testing of the lower extremities was normal, and there was no guarding or muscle spasm or atrophy. Reflex testing and sensory examination were normal. Straight leg raising test was negative, bilaterally. There were no signs or symptoms of radiculopathy, ankylosis, other neurologic abnormalities, or IVDS. The Veteran did not report using any assistive devices. The examiner noted that there was no documented evidence of arthritis on x-ray study or evidence of a thoracic vertebral fracture with loss of 50 percent or more in height. Functional impact of the Veteran's back was described as likely pain and difficulty with prolonged standing or walking. At a January 2019 VA primary care visit, the Veteran denied musculoskeletal complaints. In November 2019, the Veteran was afforded a VA back (thoracolumbar spine) examination, at which time the examiner confirmed a diagnosis of degenerative arthritis of the spine. The Veteran reported that his symptoms were worse, and he could not get comfortable. He denied flare-ups. Functional impairment was described as pain with prolonged standing or sitting, difficulty walking up and down an incline, and trouble bending and lifting. ROM testing of the lumbar spine revealed flexion to 90 degrees, with pain; extension to 30 degrees, with pain; lateral flexion to 30 degrees; bilaterally; and lateral rotation to 30 degrees; bilaterally. The combined ROM was 240 degrees. There was no evidence of pain with weight bearing. There was mild tenderness and aching of the lumbar spine and bilateral paralumbar musculature. There was no additional loss of range of motion after repetitive use testing and functional ability was not limited. The examiner estimated that after repeated use, pain would limit ROM of flexion to 80 degrees; extension to 20 degrees; lateral flexion to 30 degrees, bilaterally, and lateral rotation to 30 degrees, bilaterally. The combined range of motion after repeated use would be 220 degrees. There was no guarding, muscle spasm, or atrophy. Reflex and sensory examination was normal, bilaterally. Straight leg testing was negative, bilaterally, and there was no evidence of radiculopathy, other neurologic findings, or IVDS. There was no ankylosis. The Veteran did not use an assistive device. Diagnostic studies documented arthritis without evidence of a vertebral fracture. The examiner noted that the Veteran was retired but estimated 0 to 1 week work time lost in the last 12 months. The examiner indicated that his back disability impacted his ability to work as he would have pain with prolonged sitting or standing, especially on an incline or decline, that he needed a job with an ability to constantly shift his position and take unscheduled rest breaks, and that he would have difficulty bending and lifting objects greater than 20 pounds. The November 2019 VA examination is also not complaint with Sharp as it inadequately assessed the extent of functional loss during a flare-up. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the examination is otherwise adequate, and subsequent examination was provided to the Veteran. VA outpatient records indicate that in October 2021, the Veteran reported that he exercised in fair weather, walked two miles a day, was a gardener, and was back to work mowing lawns. At a June 2022 primary care visit, the Veteran reported that his back pain was stable. Physical examination showed no synovitis, joint swelling, or tenderness of the musculoskeletal system and normal sensation and strength. At the hearing in March 2022, the Veteran and his spouse testified that he experiences flare-ups about once a month, that may be precipitated by lifting heavy items, he may feel uncomfortable sleeping on the same bed for an extended period of time and that it feels like a pinched nerve in his lower back above the right hip and pain radiating down the back of his legs. He testified that he has to be careful getting up, that he sometimes wears a back brace, and has to be careful lifting heavier items. His spouse testified that he experiences the flare-ups less often because he avoids or tries to limit physical activity. He also testified that his back disability was one of the reasons that he left working at the auto parts store as it was difficult to lift heavy items. In September 2023, the Veteran was afforded another VA thoracolumbar spine examination, at which time the examiner continued the diagnosis of lumbosacral strain. The examiner indicated that his back disability impacted his ability to work as he could not stand or sit for greater than 30 minutes, or lift objects greater than 30 pounds on a repeated basis. The Veteran reported intermittent stabbing back pain of level 4/10, that he could not lay supine, and that he treated it with ibuprofen, Tylenol, magnesium, and a back brace. Flare-ups were described as occurring three times a year, lasting less than one hour, back pain level 8/10, that he was stiff and needed help getting out of a chair. Flare-ups were alleviated by Tylenol, ibuprofen, and a back brace. Functional impairment was described as an inability to lay flat, and needing help getting out of a chair and bending. Upon physical examination in September 2023, active and passive ROM testing of the lumbar spine was as follows: flexion to 70 degrees; extension to 25 degrees; lateral flexion to 10 degrees, bilaterally; right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. The combined range of motion was 150 degrees. There was evidence of pain on all ROM testing and weight bearing. There was no evidence of crepitus. There was localized tenderness or pain on palpation of the low back, of level 4/10. There was no additional loss of range of motion after repetitive use testing and functional ability was not limited. the Veteran was not examined immediately after repeated use over time or during a flare-up and the examiner indicate that evidence from the Veteran did not suggest limitation of functional ability. Additional contributing factors of disability were less movement than normal, being unable to lay flat, and needing help getting out of a chair and bending. Muscle strength testing was normal, and the Veteran was negative for muscle atrophy. He was negative for guarding and muscle spasm. Reflex and sensory testing were normal. Straight leg testing was normal, bilaterally. The Veteran was negative for radiculopathy, other neurologic abnormalities, ankylosis, and IVDS. The examiner specifically noted that the Veteran had no neurologic manifestations. The Veteran reported occasional use of a back brace on the right side for flare-ups. The examiner indicated that his back disability impacted his ability to work as he was unable to lay flat, had poor sleep, and needed help getting out of a chair and bending. In a December 2023 addendum, the September 2023 VA examiner estimated that during flare-ups, the Veteran would have ROM of flexion to 65 degrees; extension to 20 degrees; lateral flexion to 10 degrees, bilaterally; right lateral rotation to 20 degrees and left lateral rotation to 15 degrees. The combined ROM based on the estimated measurements would be 140 degrees. The Board finds the September 2023 VA examination and December 2023 addendum adequate and probative. After review of the evidence, both lay and medical, the Board finds that a rating higher than 10 percent is not warranted for the Veteran's back disability. There is no evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but less than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 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, which is required by the 20 percent rating criteria. As reflected above, the Veteran's flexion of the thoracolumbar spine has been no worse than 65 degrees and the combined range of motion was 140 degrees, taking into account the estimated additional limitation of motion after flare-ups per the December 2023 addendum opinion. A higher rating under the General Rating Formula is not warranted. Though the record reflects that the Veteran's lumbar spine disability impacted his employment due to pain, movement and lifting restrictions, muscle strength in the lower extremities was normal, there was no evidence of muscle atrophy, and the Veteran was negative for guarding. Thus, the Board finds that the currently assigned 10 percent rating contemplates functional impairment due to pain and restricted range of motion, as well as some interference with employment throughout the rating period. See DeLuca, supra. Further, as there is no evidence of IVDS, the alternative IVDS Formula for rating spine disability is not for application here. As to the orthopedic manifestations, there is no basis to support an initial rating higher than 10 percent for the Veteran's lumbosacral strain. As the persuasive evidence is against the assignment of a higher rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate DC. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). As discussed in further detail below, the Board remands the issue of whether a separate rating is warranted for any neurological impairment associated with the lumbar spine disability. Right Knee Disability The schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee joint, have undergone revision during the pendency of this appeal. Specifically, and as relevant to this case, revisions to DC 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021). There were no changes for DCs 5258 through 5261, and 5263. Prior to the regulatory change, the relevant rating criteria for the knee were as follows. DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The words "slight," "moderate" and "severe" as used in various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means tending toward the mean or average amount or dimension. "Severe" means very painful or harmful or of a great degree. DC 5260 provides for the evaluation of limitation of flexion of the knee. A non-compensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. As of February 7, 2021, the changes to the DCs are as follows. Unless noted below, no changes were made to the relevant rating criteria. Under the revised version of DC 5257, a 10 percent rating is assigned for recurrent subluxation or instability involving sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for recurrent subluxation or instability involving one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is assigned for recurrent subluxation or instability involving unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). In cases of patellar instability, the revised DC 5257 provides for a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 30 percent rating is warranted for diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Under Note (1), for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per Note (2), a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). 2. Entitlement to an initial rating higher than 10 percent for right knee patellofemoral pain syndrome with arthritis The Veteran is currently in receipt of an initial 10 percent rating for right knee patellofemoral pain syndrome with arthritis under DC 5260 based on noncompensable painful limitation of flexion. 38 C.F.R. §§ 4.59, 4.71a. He asserts that a higher rating is warranted. As decided in the February 2023 Board remand, the May 2019 and November 2019 VA examinations are not compliant with Sharp. However, additional ROM findings were provided in the December 2023 VA addendum, and the examinations are otherwise adequate. Upon review of all the evidence, lay and medical, the Board finds that the criteria for a rating higher than 10 percent for the right knee disability based on limitation of flexion is not warranted under DC 5260. The evidence does not show that the Veteran's right knee flexion more nearly approximates the criteria for a 20 percent rating based on limitation of motion during the appeal. The Veteran has never met, or more nearly approximated right knee flexion limited to 30 degrees. Throughout the appeal period, he maintained flexion to, at worst, 115 degrees, to include estimation based on consideration of repeated use and flare-ups. See VA examination reports dated June 2018, November 2019, September 2023, and December 2023 VA addendum. Accordingly, he does not meet the criteria for the next-higher rating of 20 percent under DC 5260, which requires knee flexion limited to 30 degrees. In addition, a higher or separate rating based on limitation of extension under DC 5261 is not warranted as the evidence shows that the Veteran had normal extension throughout the appeal. See VA examination reports dated June 2018, November 2019, September 2023, and December 2023 VA addendum. Notably, for a compensable rating, there must be evidence of limitation of extension to 10 degrees which is not shown. As such, the Board finds that a higher or separate rating based on limitation of extension is not warranted under DC 5261. Consideration has been given to right knee functional impairment and effects of pain on functional abilities. The Board acknowledges the Veteran's testimony at the hearing and his statements during VA examinations regarding functional impairment caused by his knee. The Board also acknowledges that multiple VA examiners noted pain limited functional ability with repeated use over time and during flare-ups. The functional impairment and effects of pain exhibited by the service-connected right knee disability has already been considered by the RO in the assignment of the 10 percent rating. Thus, the 10 percent rating presently assigned contemplates the functional impact arising from the objective findings and the Veteran's subjective complaints of painful right knee motion. For these reasons, the appeal for a rating higher than 10 percent for patellofemoral pain syndrome with arthritis of the right knee under DC 5260 and 5261 is denied. 3. Entitlement to an initial rating higher than 10 percent for right knee instability The Veteran is also in receipt of an initial 10 percent rating based on the Board's grant of a separate 10 percent rating for instability in February 2023. Based upon review of the lay and medical evidence, the Board finds that a rating higher than 10 percent is not warranted for right knee instability under both the earlier and revised DC 5257. The Board finds that the right knee instability is not more accurately characterized as moderate under the DC 257 effective prior to February 7, 2021. The Board acknowledges the Veteran's March 2022 testimony that his knee is weak and gives way, and that he purchased a brace at Walmart to wear. The Veteran also reported to VA examiners that his knee buckles when he turns or climbs stairs, and has stumbled. See VA examination reports dated June 2018, November 2019, and September 2023. However, objective joint stability testing has been normal at all VA examinations and the September 2023 VA examiner specifically addressed the Veteran's statements regarding his knee instability, noting that there is no diagnostic or objective evidence to validate a diagnosis of knee instability. Moreover, neither the private treatment records nor the VA outpatient records during the period on appeal document any complaints or findings of right knee instability. The September 2023 VA examiner noted occasional use of a knee brace due to patellofemoral syndrome and arthritis but not instability. Nonetheless, the Veteran's lay report of knee buckling was considered in awarding the 10 percent rating. Indeed, the Veteran is competent to report that his knee is unstable, and his report is afforded some probative weight. English v. Wilkie, 30 Vet. App. 347, 349 (2018) (objective evidence is not required to establish knee instability under DC 5257 and the Board cannot categorially find objective medical evidence more probative than lay evidence). Overall, the Board finds that knee instability that causes functional impairment with occasional wearing of a knee brace but is undetectable on examination is best characterized as slight in nature, and as such, is consistent with the currently assigned 10 percent rating. As to the amended DC 5257, the Board finds that the evidence of record persuasively weighs against a rating higher than 10 percent. There are no diagnosed conditions consisting of the patellar complex as defined in 38 C.F.R. § 4.71a, DC 5257, Note 1. Thus, a rating under patellar instability is not for application. The Veteran also does not have a right knee sprain, ligament tear, or repaired complete ligament tear causing persistent instability. See VA examination reports dated June 2018, November 2019, and September 2023. Persistent instability is not demonstrated. The Veteran occasionally wears a brace; however, it was not prescribed by a physician, and the record does not show that the Veteran consistently fell as a result of the right knee giving way or that he would consistently fall, but for the use of a brace. As such, the benefit of the doubt doctrine is not for application in this regard and a rating higher than 10 percent under the current criteria for DC 257 is not warranted. The Board has considered the applicability of any other potential diagnostic code during this period on appeal. However, as the evidence fails to demonstrate a meniscal condition resulting in residual symptoms, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under DCs 5258, 5259, 5256, 5262, or 5263 respectively. See VA examination reports dated June 2018, November 2019, September 2023, and December 2023 VA addendum. 4. Entitlement to a TDIU A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58 (2019). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Initially, the Board notes that the Veteran meets the schedular requirements for a TDIU for the entire claim period, as service connection has been in effect for multiple disabilities that combine to 70 percent disabling, with at least one disability rated as 40 percent disabling, since April 16, 2018, and to 90 percent disabling, from December 14, 2022. 38 C.F.R. § 4.16(a). The remaining question is whether any of those service-connected disabilities preclude the Veteran from securing and following a substantially gainful occupation. The Veteran contends that he is unable to work as a result of the combined effects of his service-connected disabilities. See May 2019 VA 21-8940 Veteran's Application for Increased Compensation Based on Unemployability; March 4, 2022 Board hearing transcript. After careful consideration of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran is unemployable by reason of his service-connected disabilities. As to the economic component of a substantially gainful occupation, the record reflects that the Veteran was employed full-time and earning more than the marginal income until he stopped his full-time employment with JW Vaughan in March 2015. See May 2019 VA 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. The Veteran had a part-time job sometime in 2017/2018 for an auto parts store and reported working part-time mowing lawns in October 2021. See August 9, 2017 VA follow-up visit note; October 19, 2021 VA follow-up visit note. Nevertheless, the evidence does not reflect that he has been engaged in an occupation earning more than marginal income since March 2015. As to the non-economic component of a substantially gainful occupation, the Veteran's work history includes employment as a delivery driver, sales associate, warehouse worker, and manager of an auto parts store. The Veteran has a college degree. The Veteran's work history has been primarily physical in nature, requiring standing, walking, lifting heavy auto parts, and driving a delivery truck. The Board finds that the Veteran's physical and mental ability to perform the activities required by his former occupations were severely impacted by his service-connected disabilities. Notably, the November 2019 back and knee examiner recommended only sedentary occupations for the Veteran. The November 2019 back examiner also recommended that a potential job should allow the Veteran to shift positions and take unscheduled rest breaks because of his back limitations. Further, throughout the appeal, the evidence reflects the Veteran has difficulty walking and standing for prolonged periods due to his right knee and foot, experiences sharp pain on the bottom of his foot when walking on hard surfaces or after prolonged walking, needs help bending and getting out of a chair due to his back, and has difficulty kneeling, squatting, and climbing stairs due to his knee. Additionally, the Veteran's heart disability has caused fatigue and contributes to his difficulty climbing stairs. See November 2019 VA back, foot, lumbar and knee examinations; Individual Unemployability statements; May 2023 VA heart examination; September 2023 VA back and knee examinations. The Veteran and his spouse provided testimony regarding his physical limitations such as difficulty lifting items, difficulty sitting in a vehicle for an extended period of time, and pain in the feet while working and walking on hard surfaces. See March 2022 Hearing Transcript. Regarding the service connected mental disability, VA examiners have noted the Veteran has difficulty in adapting to stressful circumstances, including work or a work-like setting, and the December 2019 examiner opined that the Veteran would have difficulty sustaining energy and motivation to complete assignments at work. See May 2019 and December 2019 VA PTSD examinations; December 2019 Individual Unemployability statement. Based on the foregoing, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that in light of his educational and employment history, the Veteran's service connected disabilities have precluded him from securing and maintaining gainful employment during the period on appeal. The remaining issues for appellate consideration are being remanded, as discussed below. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Whether a separate rating for neurological impairment associated with the service-connected lumbar spine disability is warranted. Remand is necessary to obtain additional medical clarification. The record conflicts as to whether the Veteran has neurological impairment in the lower extremities as a result of his lumbar spine disability. A February 18, 2017 private hospitalization discharge summary reflects a diagnosis of right-sided low back pain without sciatica, following a fall that morning. At a February 20, 2017 follow-up visit with his private provider, the Veteran denied radiation, numbness, or tingling. Straight leg raising was negative bilaterally. The examiner recorded a diagnosis of right-sided low back pain without sciatica and chronic bilateral low back pain without sciatica. There were no further complaints relating to radiation, numbness, or tingling at multiple visits thereafter and the diagnoses of right-sided low back pain without sciatica and chronic bilateral low back pain without sciatica continued to be noted in the provider's records dating to November 2017. However, a December 2019 VA treatment note reflects the Veteran reported numbness and pain in the bilateral feet that started two years earlier. The examiner stated, "now with neuropathy in left foot and numbness in left toes." Additionally, in the answer to Question 3 on the September 2023 VA back examination report, the examiner noted that the Veteran had: "2020-severe low back pain mostly on right side result of a fall - xray negative for fx - dx with chronic BP with right side sciatica. 2020 back and hip pain with radiation into the back of the leg/once a month flare ups." In this regard, the Board is unable to locate any records reflecting the referenced 2020 back findings, or records matching the VA examiner's September 2023 description. For these reasons, remand is warranted to obtain clarification as to whether the Veteran has any neurological impairment related to his service-connected lumbar spine disability. 2. Entitlement to a rating higher than 50 percent for PTSD with depressive disorder a. Remand of the increased rating claim is necessary to obtain potentially relevant outstanding private and VA treatment records. An October 2021 VA outpatient record indicates that the Veteran had been receiving treatment for mental health from "Dr. J. at GHS." However, the claims file only contains records for Dr. V.B.J., GHS Psychiatry dating to May 2018. On remand, the AOJ should request any additional records from this doctor. Additionally, the record reflects that the Veteran also receives mental health treatment at VA and the Vet Center. See October 2021 and July 2022 treatment notes. Although the claims file contains a few mental health notes dated after October 2021, there are no records from the Vet Center. On remand, any outstanding records should be obtained and associated with the claims file. b. Remand is also necessary to afford the Veteran a new VA examination to assess the severity of his PTSD with depressive disorder. The Veteran last underwent a VA compensation examination for PTSD in December 2019. Thereafter, VA outpatient records dated from April 2022 to September 2022 note the Veteran's request for an increased dose of his psychiatric medication and thereafter changed medications twice. An April 2022 record noted increased anxiety, and in September 2022, the Veteran reported alienating from his family for his upcoming birthday. Compared to the December 2019 PTSD examination findings, the subsequent evidence suggests worsening of the Veteran's PTSD symptoms. Accordingly, an updated VA examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matter is REMANDED for the following action: 1. Contact the Veteran and ask him to complete and return the appropriate forms to obtain all records for his mental health treatment from a). the Vet Center, and b). Dr. V.B.J., GHS Psychiatry. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. Associate any received records with the Veteran's claims file. Advise him that he may submit any records in his possession if he so chooses. 2. Ensure that all outstanding VA treatment records, to include mental health records, are associated with the claims file. 3. Obtain an addendum medical opinion seeking clarification as to whether the Veteran has any neurological impairment secondary to the service- connected lumbar spine disability. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner(s), who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a complete review of the record, the examiner is asked to respond to the following: (a) Clarify whether the Veteran has any neurological impairment associated with the lumbar spine disability, particularly to include lumbar radiculopathy or sciatica. In doing so, address the notations in the September 2023 VA examination report with regard to a 2020 finding of right side sciatica which the Board is unable to locate. (b) Also specifically address the Veteran's lay statements and December 2019 VA report of bilateral foot and numbness in feet and toes. The Board notes that service connection for the lumbar strain was awarded as secondary to status-post removal of Morton's neuroma, right foot. A full and thorough rationale must be provided for any opinion given, referencing relevant medical and lay evidence where appropriate. 4. Schedule the Veteran for an updated VA examination to determine the current severity of his service-connected PTSD with depressive disorder. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his PTSD with depressive disorder, and (b) Assess the severity of the resultant social and occupational impairment. In doing so, address the 2022 records showing an increase in anxiety and increased medication dosages. (Continued on the next page) ? The examiner must provide a complete rationale for any opinions provided. 5. Then, readjudicate the remanded legacy claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.