Citation Nr: 18142473 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-08 619 DATE: October 15, 2018 ORDER Entitlement to a rating higher than 10 percent for left knee limitation of flexion is denied. Entitlement to a separate initial 10 percent rating for left knee limitation of extension is granted. Entitlement to a rating higher than 10 percent for right knee limitation of flexion is denied. Entitlement to a separate initial 10 percent rating for right knee limitation of extension is granted. REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. Throughout the pendency of this claim, the Veteran’s left knee disability has generally been manifested by either flexion limited to 45 degrees or extension to 10 degrees; it has not been manifested by flexion limited to 30 degrees or less, extension limited to 15 degrees or less, ankylosis, recurrent instability or subluxation, dislocated or removed semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. 2. Throughout the pendency of this claim, the Veteran’s right knee disability has generally been manifested by flexion limited to r5 degrees and extension to 10 degrees; it has not been manifested by flexion limited to 30 degrees or less, extension limited to 15 degrees or less, recurrent instability or subluxation, ankylosis, dislocated or removed semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a higher rating than 10 percent for left knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5256-63. 2. The criteria for a 10 percent initial rating, but not higher, for left knee limitation of extension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5256-63. 3. The criteria for a higher rating for right knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5256-63. 4. The criteria for a 10 percent initial rating, but not higher, for right knee limitation of extension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5256-63. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the Veteran’s present claim for increased compensation submitted in April 2013, the Veteran stated that he had to quit his job because of pain in his knees and back. VA interpreted the Veteran’s statement as a claim for a TDIU, and in a May 2013 notice letter, the Veteran was informed of what the evidence must show to substantiate a claim for a TDIU. The letter also included VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and the Veteran was instructed to complete and submit that form. No response from the Veteran was received. In June 2015, the Veteran was given another copy of VA Form 21-8940, and VA asked the Veteran to complete and submit the form if he believed if he was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. The Veteran again did not respond to the June 2015 letter. Consequently, in an August 2015 rating decision, denied entitlement to TDIU. The Veteran was informed that his claim for TDIU would be reconsidered upon receipt of a completed VA Form 21-8940 or upon receipt of evidence that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Veteran has not submitted a notice of disagreement regarding the August 2015 rating decision. The Veteran has a duty to assist and cooperate with VA; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993). However, the Board recognizes that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the claim for TDIU is on appeal. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.45; 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 portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, limitation of flexion of the knee is rated 10 percent for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the knee is rated 10 percent for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5257 provides that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of a knee. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Subluxation of the patella is the incomplete or partial dislocation of the knee cap. Rykhus v. Brown, 6 Vet. App. 354 (1993). The words slight, moderate, and severe as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension, or for limitation of motion and instability or subluxation of the knee, or meniscal pathology. However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating. 38 C.F.R. § 4.14; VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004);VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). 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 codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When, limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is generally for application. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A rating for arthritis cannot be combined with a rating based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 1. Entitlement to a rating higher than 10 percent for a left knee disability 2. Entitlement to a rating higher than 10 percent for a right knee disability Outpatient records throughout the period of appeal generally show the Veteran’s treatment for bilateral knee pain. A treatment record from June 2012 shows that the Veteran’s right knee range of motion was from 0 to 115 degrees, and left knee range of motion was from 0 to 120 degrees. Another October 2012 treatment record shows that the Veteran’s knee range of motion was from 3 to 105 degrees bilaterally. Both knees were stable to varus/valgus stress. A treatment record from August 2013 shows that the Veteran’s right knee had active flexion to 40 degrees. Extension was to 10 degrees. The Veteran received a pain injection. After the injection, the Veteran’s right knee flexion was to 90 degrees, and extension was full. On VA examination in November 2013, the Veteran reported daily flare-ups of bilateral knee pain triggered by prolonged standing, walking, and going up and down stairs. The Veteran had previously had two pain injections. The examiner observed right knee flexion to 85 degrees with pain at 85 degrees. After repetitive use, flexion was to 80 degrees. Extension as to 0 degrees with no objective evidence of pain. Left knee flexion was to 90 degrees with pain at 90 degrees. After repetitive use, flexion was to 85 degrees. Extension was to 0 degrees with no objective evidence of pain. Muscle strength testing was normal. Anterior instability, posterior instability, and medial-lateral instability testing was normal bilaterally. There was no evidence of recurrent patellar subluxation or dislocation. The examiner stated that pain would significantly limit functional ability during flare-ups causing additional limitation in the range of motion of the knees. The examiner specified that during flare-ups, flexion of the right knee would be limited to 65 degrees, and extension would be to 10 degrees. Flexion of the left knee would be limited to 70 degrees, and extension would be to 10 degrees. On his VA Form 9 submitted in March 2015, the Veteran remarked that at his most recent VA evaluation, he had taken his pain medication and had rested his knees. Therefore, his knees were in their best condition. He stated that had the evaluation occurred after a normal walk or prolonged standing, his flexibility would have decreased by half. He stated that he took early retirement from his prior work as a clerk at the United States Postal Service because he could not stand for prolonged periods of time. He stated that he had been issued a disabled parking permit due to knee pain. A November 2014 X-ray found moderately severe arthritis in both knees. A July 2017 treatment note contains the Veteran’s report of bilateral knee pain that rated a five on a 0 (low) to 10 (high) pain scale. He had pain with prolonged standing and walking. A July 2017 X-ray found severe bilateral tricompartmental osteoarthritis with a “bone-on-bone” appearance in the medial compartments bilaterally. On VA examination in December 2017, the Veteran reported experiencing pain and swelling of both knees when walking or standing for a long period. He treated the pain with Tylenol. The Veteran reported daily flare-ups during walking or prolonged standing, and he stated that he could not run, jump, squat, or perform knee bending exercises. The examiner observed flexion of the right knee to 65 degrees and extension to 0 degrees with pain. There was evidence of crepitus and pain with weight bearing. Flexion of the left knee was to 45 degrees and extension to 0 degrees with pain. There was pain with weight bearing but no crepitus. Passive ranges of motion were the same as active ranges of motion for both knees. There was no objective evidence of pain for either knee in non-weight bearing. There was no additional loss of function or range of motion after repetitive use testing for either knee. Muscle strength testing was normal for both knees. There was no muscle atrophy. No ankylosis was present. Joint stability testing was performed, and there was no instability of either knee. The Veteran occasionally used a cane. The Board finds that the preponderance of the supports the assignment of 10 percent ratings for limitation of extension and limitation of flexion in the left knee, but not additional separate rating for the right knee. A treatment record from August 2013 shows that the Veteran’s right knee had active flexion to 40 degrees and extension to 10 degrees. However, it is not clear that the treatment provider used a goniometer to make the measurements. The Veteran received a pain injection, and after the injection, the Veteran’s right knee flexion was to 90 degrees, and extension was full. Those measurements warrant the assignment of separate 10 percent ratings for limitation of extension and flexion. Concerning the right knee, the evidence shows generally that flexion of the knee was limited, at worst, to 65 degrees, with consideration of pain, with a concurrent measurement of extension limited, at worst, to 10 degrees, as reported by the November 2013 VA examiner. Those flexion and extension measurements are consistent with 10 percent ratings under Diagnostic Codes 5260 and 5261. Concerning the left knee, the evidence shows generally that flexion of the knee was limited, at worst, to 45 degrees, with consideration of pain, with a concurrent measurement of extension limited to 0 degrees, as reported by the December 2017 VA examiner. Extension of the left knee was limited, at worst, to 10 degrees, with consideration of pain, with a concurrent measurement of flexion limited to 70 degrees, as reported by the November 2013 examiner. These flexion and extension measurements are consistent with the assignment the current 10 percent rating for limitation of flexion under Diagnostic Code 5260. However, limitation of extension to 10 degrees also warrants a separate rating of 10 percent pursuant to Diagnostic Code 5261 as an initial rating from April 11, 2013. The Veteran has repeatedly reported that he experiences pain. He has reported pain to each medical examiner, and he has additionally discussed his pain in repeated submissions to the RO. Because of the Veteran’s painful limitation of knee motions, and other symptoms, the presently assigned disability rating of 10 percent for each knee based on painful limitation of extension and flexion are warranted. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45, 4.59. That pain was considered in resolving reasonable doubt to find that a separate 10 percent rating for limitation of extension was warranted for the left knee. However, the Board finds that the preponderance of the evidence is against the assignment of any higher or additional separate rating for limitation of motion of either knee. The ratings assigned have considered additional functional loss due to pain and other factors. Turning to instability, the Board concludes that a compensable rating under Diagnostic Code 5257 is not warranted at any time throughout the period of appeal for either knee. Significantly, all of the VA examiners and treatment providers indicate that the Veteran’s knees were stable on objective observation. To whatever extent the Veteran may assert that either his left or right knee is unstable, the Board finds that the objective medical evidence outweighs the subjective complaints, as the medical evidence was created by trained health care providers objectively performing their professional duties following objective testing. The Board finds that those objective medical findings are more persuasive because of the training and experience of the medical professionals. In light of those medical records, the Board finds that a separate disability rating is not warranted at any time during the period of appeal for instability of either knee, pursuant to Diagnostic Code 5257. In addition, subluxation of either knee is not shown. None of the treatment records, to include X-ray and MRI findings, show dislocated or removed semilunar cartilage of either knee. Thus, Diagnostic Codes 5258 and 5259 cannot serve as a basis for an increased or separate rating. Finally, in considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are not applicable, as the medical evidence does not show that the Veteran has any of those conditions. The Board notes that the Veteran’s functional loss was considered as the medical evidence shows that the Veteran has consistently complained of pain. 38 C.F.R. §§ 4.40, 4.45. However, the limitation of motion and functional loss documented in the medical records as resulting from pain, including flare-ups, is contemplated in the disability ratings now currently assigned. Moreover, although the Veteran had pain on repetitive motion, that pain did not result in limitation of flexion or extension to the level that any separate or higher rating would be warranted. There is otherwise no evidence of additional significant impairment of motor skills, muscle function, or strength attributable to the Veteran’s knee disabilities, beyond what is already being compensated. Consequently, the Board finds that a higher rating based on functional loss is not warranted for either knee. Accordingly, the Board finds that 10 percent initial ratings for limitation of flexion and limitation of extension of each knee are warranted. However, the Board finds that the preponderance of the evidence is against the assignment of any higher or separate rating for the left and right knee disabilities, and those claims must be denied. The Veteran’s pain and functional loss due to other factors has been considered in finding those ratings appropriate. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability is remanded. The Veteran has service-connected ratings of 60 percent for bronchial asthma, 60 percent for chronic kidney disease, 20 percent for a lumbar spine disability, 20 percent for diabetes mellitus, 10 percent for left knee limitation of extension, 10 percent for left knee limitation of flexion, 10 percent for a right knee limitation of extension, 10 percent for right knee limitation of flexion, 10 percent for dermatitis, and 0 percent for bilateral calcaneal spur. The combined disability rating is at least 90 percent. Therefore, the Veteran’s service-connected disabilities meet the percentage requirements for consideration of the assignment of TDIU. 38 C.F.R. § 4.16(a). The question that remains, then, is whether the Veteran’s service-connected disabilities alone preclude him from obtaining or retaining substantially gainful employment. The Board may not deny a rating of TDIU without producing evidence, as distinguished from mere conjecture, that a Veteran’s disability does not prevent him from performing work that would produce sufficient income to be other than marginal. VA has a duty to supplement the record by obtaining an examination, which includes an opinion on what effect the appellant’s service-connected disability had on his ability to work. Friscia v. Brown, 7 Vet. App. 294 (1995); Beaty v. Brown, 6 Vet. App. 532 (1994). Therefore, the Board is of the opinion that the case requires a longitudinal review of the claims file for an assessment as to the degree of functional loss occasioned by the Veteran’s service-connected disorders. This clinical opinion must be based on full consideration of the Veteran’s documented history and supported by detailed rationale to fully resolve the matter of the Veteran’s entitlement to a total rating based on individual unemployability. The matter is REMANDED for the following action: 1. Secure all outstanding VA medical records. If any records cannot be located, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. If records are unable to be obtained (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Then, schedule the Veteran for a VA examination. The examiner must review the claims file and should note that review in the record. The examiner should determine the functional effects of the service-connected asthma, kidney disease, lumbar spine disability, diabetes mellitus, bilateral knee disabilities, dermatitis, and bilateral calcaneal spurs on the Veteran’s ability to work with a complete discussion of all functional impairments impacting social and industrial opportunities. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to obtain or retain substantially gainful employment due to the service-connected disabilities, consistent with his training and experience. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. The examination report must include a complete rationale for the opinions and conclusions reached. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Layton, Counsel