Citation Nr: 1804414 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 08-18 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a higher rating for a right knee disability rated 30 percent from July 1, 2008 to May 11, 2011 and rated 40 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1980 to December 1984. The Veteran died in January 2012. The Appellant is the Veteran's sister and was accepted as a proper substitute in March 2012. 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (2017). This matter came to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which granted service connection with an initial evaluation of 10 percent, effective October 20, 2005. In a June 2008 rating decision, the RO granted a total temporary rating from April 9, 2007 until June 30, 2008; a 30 percent rating was assigned from July 1, 2008. In December 2017, the RO increased the evaluation to 40 percent, effective May 11, 2011. As this constitutes less than the maximum benefit allowed by law and regulation, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2011, the Board denied an initial rating in excess of 30 percent, prior to April 9, 2007, for the right knee disability. The Board remanded the issues of entitlement to a rating in excess of 30 percent from July 1, 2008, and TDIU for further development. These two issues were also remanded for further development in August 2017. That development has now been completed. FINDINGS OF FACT 1. From July 1, 2008 to May 11, 2011, the Veteran's right knee disability did not manifest in extension limited to 30 degrees or greater. 2. Beginning May 11, 2011 and thereafter, the Veteran's right knee disability did not manifest in extension limited to 45 degrees. 3. The Veteran's service-connected disability did not preclude him from securing and following a substantial gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a higher rating for a right knee disability rated 30 percent from July 1, 2008 to May 11, 2011 and rated 40 percent thereafter have not been met. 38 U.S.C. § § 1155, 5107 (2012); 38 U.S.C.A. § 4.71 a, Diagnostic Code 5261 (2017). 3. The criteria for a TDIU have not been met. 38 U.S.C. § § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Higher Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 should be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. Id. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, restricted or excess movement of the joint, pain on movement, and weakness. Id. 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 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (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. 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. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Regulation also specifies that when testing joints, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2017). Furthermore, the Court has held that VA examinations must comply with Section 4.59 to be adequate. Correia v. McDonald, 28 Vet. App. 158, 168-169 (2016). The Veteran's service-connected right knee disability is currently rated under Diagnostic Code 5003-5261. Diagnostic Code 5003 provides ratings for degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II (2017). Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). The rating schedule also provides that dislocation of semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2016). Diagnostic Code 5259 provides for the assignment of a maximum 10 percent rating based on symptomatic removal of the semilunar cartilage. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. The Veteran was afforded a VA examination August 2008. The examiner reviewed the medical files and conducted an interview and examination of the Veteran. The examiner noted an April 2007 arthroscopic procedure which reported no meniscal tear. Upon examination, the examiner found no instability, stiffness, weakness, incoordination, dislocation or subluxation, or locking episodes. The examiner observed and reported an antalgic gait, tenderness to palpation, and small joint effusion. The examiner observed use of a brace, but there were no signs of abnormal weight bearing. There were no signs of patellar or meniscus abnormality. The examiner observed objective evidence of pain with active range of motion. Upon testing, active range of motion in flexion was between 0 to 125 degrees and extension was noted as limited by -10 degrees. Range of motion was not affected by repetitive use, although pain was present. The examiner noted that the Veteran significantly limited effort in active range of motion testing. He avoided full extension and resisted passive range of extension motion past 10 degrees due to pain. Passive range of flexion motion was normal. The examiner noted that the Veteran's range of motion improved with repetition. The examiner indicated that the Veteran is able to stand between 1 to 3 hours and walk at least 1/4 mile. VA treatment records show reports of chronic knee pain with occasional flares and fluctuating range of motion. In a March 2010 VA treatment records, the Veteran reported worsening knee pain after working 1 to 2 weeks at friend's lodging company. The clinical examination showed no edema, erythema, or warmth; the clinician observed pain and limited range of motion due to pain. In a January 2011 VA treatment record, the Veteran was noted to have mild diffuse tenderness to palpation but full range of motion in the right knee. In a May 2011 VA treatment record, the Veteran was noted to have continuous right knee pain with examination showing atrophy, minimal effusion, and painful range of motion between 30 to 90 degrees. Negative results were obtained on the McMurray and Drawer test. In a May 2011 physical therapy consultation, the Veteran reported constant pain worsened by walking. The clinical examination showed range of motion to be -15 degrees in flexion, 30 degrees in extension actively. The clinician noted that the Veteran sat comfortably at 90 degrees in flexion; the Veteran was too guarded to complete the McMurray or Clark's sign test. Considering the evidence of record, the Board finds a rating in excess of 30 percent for the Veteran's right knee disability between July 1, 2008 and May 11, 2011 is not warranted. A rating in excess of 40 percent after May 11, 2011 is also not warranted. The evidence reflects that the Veteran's right knee manifest with pain and limitation of motion. A higher rating of 40 percent under DC 5261 requires extension limited to at least 30 degrees. The VA treatment records and examination report show that the Veteran's right knee extension has not been limited to 30 degrees or more prior to May 11, 2011. In particular, January 2011 VA treatment records note full range of motion. Although a March 2010 VA treatment record noted limited range of motion, no measurements were recorded and thus, does not support a higher rating. A higher rating of 50 percent under DC 5261 requires extension limited to 45 degrees. After May 11, 2011, the evidence does not support limitation of motion in extension of right knee to 45 degrees of more. The May 2011 physical therapy consultation record shows extension was limited to no more than 30 degrees. The Board is cognizant of the Veteran's competency and credibility to report pain and symptoms of his knee disability. The Board has considered the Veteran's and the Appellant's report of knee pain and limitations, to include difficulty sleeping, walking, sitting or standing for extend periods of time. See June 2008 Form 9, October 2006 VA 21-4138, and February 2012 VA 21-4138. However, even considering additional functional loss due to pain that was noted at the examination, extension in the knee has not been so limited as to warrant a higher evaluations for either appeal period. The Board further notes that higher and separate ratings are not warranted for any appeal period under review when other potential diagnostic codes are considered. A separate, compensable rating under Diagnostic Code 5257 is warranted if there is subluxation or lateral instability of the knee. Here, the evidence does not warrant a separate, compensable rating for right knee instability. The Board notes that the Veteran reported right knee instability and giving way. However, the objective evaluations and the VA examination findings do not reflect clinical findings of instability or subluxation. The objective joint stability tests conducted in the May 2011 VA treatment records were negative and without any clinical evidence of recurrent subluxation or instability. The 2008 VA examination report showed no subluxation or dislocation was identified. As such, a compensable rating for right knee instability or subluxation is not warranted for either appeal period. Next, the record reflects that the Veteran underwent an arthroscopic procedure in April 2007 to remove loose fragments from the men history of removal of part of the semilunar cartilage, i.e., the meniscus. As such, the Board has considered the applicability of Diagnostic Code 5258, which provides for the assignment of a maximum 20 percent rating based on dislocated semilunar cartilage. As noted, the criteria under Diagnostic Code 5258 include "frequent episodes of 'locking,' pain, and effusion into the joint." Joint effusion was not noted in January 2011 VA treatment records. VA treatment records show minimal effusion was noted in March 2010 and May 2011. Small joint effusion was also noted at the 2008; but no locking episodes were indicated. The Veteran has consistently reported having significant knee pain. However, he is not shown have experienced frequent episodes of locking, in addition to the findings of pain and minimal effusion. Therefore, a rating under DC 5258 is not warranted. Moreover, to assign the Veteran a separate rating under Diagnostic Code 5258 would constitute impermissible pyramiding in this case. The right knee disability is manifested by painful limited motion and some effusion. Diagnostic Code 5258 makes reference to "locking, pain, and effusion" - symptoms that tend to overlap with the rating criteria Diagnostic Code C 5261 that contemplate limitation of motion and pain in the knee through functional impairment with use. To assign separate ratings under Diagnostic Codes 5261 and 5258 would violate the prohibition against pyramiding as these codes overlap in ratings based on pain and locking as forms of limitation of motion. 38 C.F.R. § 4.14; See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Thus, a separate rating under Diagnostic Code 5258 is not warranted. The Board has considered whether a rating is possible under Diagnostic Code 5259 based on symptomatic removal of the semilunar cartilage. The records reflect that the Veteran underwent a right knee arthroscopic procedure with removal of loose fragments in April 2007. Nonetheless, a separate rating under Diagnostic Code 5259 is not warranted. There are only two requirements for a compensable rating under Diagnostic Code 5259. First, the semilunar cartilage or meniscus must have been removed. Second, it must be symptomatic. However, these symptoms are contemplated in the ratings currently assigned under Diagnostic Code 5261. The record shows that the Veteran's knee disability is manifested by findings and symptoms which include arthritis, pain, and limitation of motion. As the pain and limited motion attributed to the arthroscopic procedure overlap with the symptomatology upon which ratings under Diagnostic Code 5261 has been based, assigning a separate compensable rating under Diagnostic Code 5259 would constitute pyramiding prohibited by 38 C.F.R. 4.14. See Esteban, at 261-62. A separate, compensable rating is also not warranted under DC 5260 for limited flexion. Flexion was normal at the 2008 VA examination. The VA treatment records do not contain specific findings of flexion limited to a compensable degree. There are no other diagnostic codes which would provide higher or separate ratings for the Veteran's knee disabilities. As the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5256, 5262, or 5263, respectively. The Board acknowledges that in advancing this appeal, the Veteran and subsequently the Appellant, believe that his disability is more severe than the assigned disability rating reflects. However, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also contemplates the Veteran's descriptions of his symptoms. Ratings in excess of the currently assigned 30 percent effective July 1, 2008 through May 11, 2011 and 40 percent thereafter are not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). There are no additional expressly or reasonably raised issues presented on the record. TDIU The Veteran contends his service-connected right knee disability renders him unable to obtain or maintain employment. See June 2008 VA Form 9. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2017). The Veteran is only service-connected for limited extension of the right knee with a rating of 30 percent prior to May 11, 2011, and 40 percent thereafter. He does not meet the schedular criteria under 38 C.F.R. § 4.16 (a) for a TDIU. Nonetheless, in cases where the scheduler criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 3.321. Entitlement to benefits on an extra-schedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b) (2017). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016). The Board does not have the authority to assign an extra-schedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). As a preliminary matter, the Board notes that a substantially complete VA Form 21-8940 is required to establish entitlement to TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. VA Adjudication Manual M21-1 IV.ii.2.F.2.b. Under the VA Adjudication Manual, when VA Form 21-8940 has not been submitted, the issue of TDIU, whether expressly or reasonably raised, will be denied. Unfortunately, the Veteran did not complete a VA Form 21-8940. In the August 2017 Remand, the Board remanded the TDIU claim for further development. Pursuant to the Remand instructions, the RO sent the Veteran a notice with a request for completion of a Veteran's Application for Increased Compensation Based on Unemployability or Form 21-8940 in September 2017. Unfortunately, the appellant did not return a completed Form 21-8940 to support this claim. While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to properly address a claim for TDIU. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In sum, the appellant has failed to cooperate with VA's attempts to develop the claim for TDIU. Moreover, entitlement for TDIU is not warranted as the record shows that the Veteran's service-connected disability precluded him from performing sedentary work. VA treatment records shows that the Veteran worked sporadically, and mainly physical labor jobs. Notably, the Veteran provided part-time care to a friend's father and at a lodging company. See January 2011 and September 2006 VA treatment records. Evidence of record shows the Veteran was a high school graduate. At a March 2007 VA examination, the examiner discussed functional limits caused by the Veteran's right knee disability. In particular, the examiner noted the Veteran was able to stand 1 to 3 hours and walk 1/4 mile. The examiner indicated that there were significant effects on occupation with decreased mobility, problems lifting and carrying, difficulty reaching, and pain. In a June 2008 VA Form 9, the Veteran reported that he was unable to work due to the severity of his knee disability; he reported tremendous pain and difficulty walking, sitting or standing for extended time. At an August 2008 examination, an examiner noted that the Veteran had worked part time jobs in the past, but has not worked full time for 2 to 3 years, and is currently unemployed. The examiner noted significant effects on usual occupation, including decreased mobility and impact on physical employment, but there was no impact on sedentary employment which allowed frequent change of position. The Board notes that VA examiners have suggested there are some limitations on employment consisting of physical labor. The examiners noted the Veteran's ability to walk one fourth of a mile and stand between 1 to 3 hours. However, they have not indicated that his functional limitations precluded employment. And in fact, the Veteran engaged in physical employment during the pendency of this appeal (at a lodging company and as a care taker to an elderly man). Thus, it is apparent that he could have been able to perform work consisting of some physical aspect, although perhaps not involving heavy physical labor. Further, the 2008 VA examiner indicated that the Veteran would be able to perform sedentary work. The Board notes that the Veteran's prior work experience appears to have involved mostly manual labor, and not sedentary work. That alone, however, does not necessarily mean that the Veteran was not able to secure or follow a substantially gainful sedentary occupation. Although the Veteran's past work history consists of physical labor, he has completed high school, indicating that he likely would have been able to partake in some entry-level sedentary work. In sum, the evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disability. Given the foregoing, there is no basis to refer the TDIU for extraschedular consideration. The Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim. As such, that doctrine is not applicable and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER A higher rating for a right knee disability rated 30 percent from July 1, 2008 to May 11, 2011 and rated 40 percent thereafter is denied. Entitlement to a TDIU is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs