Citation Nr: 18142516 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-21 388 DATE: October 16, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease, osteoarthritis (left knee disability) is denied. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease, osteoarthritis (right knee disability) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from September 28, 2017, subject to the regulations governing the award of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 28, 2017 is remanded. FINDINGS OF FACT 1. Throughout the appeal period, symptoms of the Veteran’s service-connected left knee disability did not more nearly approximate limitation of flexion to 30 degrees or compensable limitation of extension, to include consideration of flare-ups. 2. Throughout the appeal period, symptoms of the Veteran’s service-connected right knee disability did not more nearly approximate limitation of flexion to 30 degrees or compensable limitation of extension, to include consideration of flare-ups. 3. The Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for service-connected left knee disability have not been met. 8 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260. 2. The criteria for an initial rating in excess of 10 percent for service-connected right knee disability have not been met. 8 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260. 3. The criteria for a TDIU have been met from September 28, 2017. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1973 to August 1977. This matter came to the Board of Veterans’ Appeals (Board) on appeal from January 2015 and November 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the January 2015 rating decision, the RO granted entitlement to service connection for left and right knee disability, and assigned an initial noncompensable rating, effective October 21, 2006. The Veteran disagreed with the assigned ratings in February 2015. In the November 2015 rating decision, the RO denied entitlement to a TDIU. The Veteran disagreed with the RO’s determination in December 2015. In a May 2018 rating decision, the RO, inter alia, increased the rating for the Veteran’s left and right knee disability to 10 percent, also effective October 12, 2006. Although a higher rating has been granted, this issue remains in appellate status, as the maximum schedular rating has not been assigned from the effective date of the award of service connection. AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating 1. Left Knee / Right Knee The Veteran seeks a higher rating for his service-connected knees. He contends that the ratings currently assigned do not reflect the severity of his disability. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence ‘used to decide whether an [initial] rating on appeal was erroneous....’Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2017). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (2017). When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); see DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, the RO has evaluated the Veteran’s left and right knee disability under the criteria pertaining to arthritis and limitation of motion. Under those criteria, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees is noncompensable; flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension are assigned as follows: extension limited to 5 degrees is noncompensable; extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent. See 38 C.F.R. § 4.71a. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of evidence is against the assignment of an initial rating in excess of 10 percent for the Veteran’s left and right knee based on limitation of flexion or extension. In this case, repeated examinations have shown that the Veteran’s left and right knee motion is not limited to the extent necessary to meet the criteria for a rating in excess of 10 percent under Diagnostic Code 5260, the code setting forth the criteria for limitation of flexion. Specifically, at the February 2007 VA examination, flexion was to 90 degrees, with pain at 50 degrees, and extension to zero degrees. At the October 2014 VA examination, bilateral knee flexion was to 85 degrees, with pain at 50 degrees, and extension to zero degrees with no evidence of pain. Finally, at the April 2018 VA examination, bilateral knee flexion was to 135 degrees, without pain, and extension to zero degrees without pain. Based on these findings, a rating in excess of 10 percent under Diagnostic Code 5260 or 5261 is not warranted. The Board also finds that the preponderance of the evidence is against the assignment of increased ratings based on functional loss. At the February 2007 VA examination, the Veteran reported aching pain that comes and goes, as well as swelling, which makes it hard to walk and rest. At the October 2014 VA examination, the Veteran reported weakness to bilateral knees, and falling frequently, since his knees “just give out.” He described flare-ups that impacted his knees, as throbbing and pin pricking three times a week, especially when the weather is bad. At the April 2018 VA examination, the Veteran reported pain with prolonged walking and standing, and that repetitive activities causes fatigability and weakness. Examinations, however, have shown that the level of additional loss of motion based on functional loss or flare-ups of pain does not rise to the level of higher ratings for limitation of flexion or limitation of extension under Diagnostic Codes 5260 or 5261. Specifically, the February 2007 VA examiner noted that the Veteran experienced pain, fatigue, and weakness after repetitive use overtime, however, the additional limitation of bilateral knee joint function was zero degrees. At the October 2014 VA examination, the Veteran performed repetitive-use testing without additional limitation of motion. The examiner noted pain which limited his functional ability, with less movement than normal. At the April 2018 VA examination, there was no additional loss of function or range of motion upon repetitive-use testing which would more nearly approximate loss of motion required for a rating in excess of 10 percent. Rather, the Veteran denied flare-ups of his knees or having any functional loss or impairment. Cf. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate where flare-ups were not properly addressed). In addition, the examiner found that the Veteran exhibited no pain with weight bearing and non-weight bearing, and there was no evidence of pain, weakness, fatigability, lack of endurance, or incoordination. Strength in his lower extremities was 4/5, and there was no evidence of atrophy. Thus, symptoms such as pain, fatigue, weakness, and lack of endurance has not been shown to produce additional functional loss or limitation of motion to support the assignment of higher ratings. The described symptoms are contemplated in the currently assigned 10 percent rating. The most probative evidence does not reflect the functional equivalent of symptoms, supported by adequate pathology, required for the assignment of increased ratings based on functional loss. The Board has considered whether higher ratings could be assigned under an alternative diagnostic code, however, the Board finds that no other diagnostic codes are applicable. For example, the April 2018 VA examiner found no evidence of ankylosis of the left and right knee. Thus, a rating under Diagnostic Code 5256 is not warranted. The Veteran reported a giving way of his knees during his October 2014 VA medical examination. However, the evidence shows that the Veteran’s left and right knee ligaments have been consistently stable upon clinical evaluation, with no indication of subluxation or lateral instability. For example, VA examinations conducted in February 2007, October 2014, and April 2018 all showed that there was no instability or subluxation present. Thus, considering the Veteran’s statement of his knees giving out long with the multiple findings throughout the course of the appeal period of a lack of instability on examination, the Board finds that the instability has not reflected the recurrent subluxation or lateral instability that would warrant assignment of a separate compensable rating under 38 C.F.R. § 4.71, Diagnostic Code 5257. Furthermore, a rating under Diagnostic Codes 5258 and 5259 is not applicable. Specifically, the October 2014 and April 2018 VA examiners indicated that the Veteran did not have, nor had he ever had, a meniscal disability. Thus, a rating under Diagnostic Codes 5258 and 5259 is not warranted. As the preponderance of evidence reflects the symptoms of the Veteran’s left and right knee disability do not more nearly approximate the criteria for a rating higher than 10 percent, the benefit of the doubt doctrine is not for application and a rating higher than 10 percent for left and right knee disability is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. TDIU The Veteran seeks a total rating based on individual unemployability, claiming that he is unable to work as a result of his service-connected disabilities. VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, in any case where the Veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran’s service-connected disabilities are as follows: major depressive disorder with anxious distress, rated as 50 percent disabling, effective September 28, 2017; degenerative joint disease; osteoarthritis, right knee, rated as 10 percent disabling, effective October 12, 2006; degenerative joint disease; osteoarthritis, left knee, rated as 10 percent disabling, effective October 12, 2006; tinnitus, rated as 10 percent disabling, effective October 12, 2006; and left ankle strain rated as 10 percent disabling, effective April 26, 2016. From October 12, 2006 the Veteran’s combined rating was 30 percent. From April 26, 2016, the Veteran’s combined rating was 40 percent. From September 28, 2017, the Veteran’s combined rating was 70. Therefore, he does meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) from September 28, 2017. Thus, the next question for consideration is whether his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment from September 28, 2017. See 38 C.F.R. § 4.16 (a). In this case, the Veteran submitted VA Form 21-8940 for TDIU in June 2015. He reported that he completed one year of college, and had not had any other education and training before becoming too disabled to work. He noted that he was employed as a warehouse operator from 1977 to 2001, and in 2005. The Veteran indicated that he became too disabled to work in 2005, due to all of his service-connected disabilities. In September 2015, General Services Administration reported that the Veteran was employed as a materials hander until January 12, 2002. The Veteran’s employment ceased when he retired in 2002 on an early voluntary retirement. In September 2015, Food Depot reported that the Veteran’s employment involved stocking and wrapping cut meat from March 2006 to July 2006, however, did not indicate the reason he was no longer employed. The Veteran was afforded a VA medical examination in October 2014. The examiner determined that the Veteran’s service connected left and right knee disability does not impact his ability to work. The Veteran underwent a VA examination in June 2016. The examiner determined that the Veteran’s service-connected left ankle disability impacted his ability to work. The examiner noted that there was ankle stiffness, pain, and difficulty with prolonged walking or climbing stairs. At a January 2018 VA mental health examination, the Veteran reported that he last worked in 2005 or 2006. He stated that he tried to work in a food depot loading and unloading supplies from trucks, but he could not work due to his knees. The examiner noted that the Veteran’s physical issues are the sole factor he cites as preventing him from working. The examiner, however, did not provide an opinion as to whether the Veteran’s psychiatric disorder impacted his ability to work. At an April 2018 VA examination, the examiner determined that the Veteran’s left and right knee disability impacts his ability to work. The examiner noted that prolonged walking and standing causes fatigability and weakness. The above evidence reflects that the Veteran’s service connected bilateral knee and left ankle disabilities have significantly impacted his ability to work. Although no medical professional has expressed an opinion as to whether the Veteran’s service connected disabilities rendered him unemployable, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In light of the Veteran’s limited educational and occupational history, the Veteran’s bilateral knee and left ankle disabilities, along with the occupational impairment from his major depressive disorder, prevent him from securing and following substantially gainful employment. As such, entitlement to a TDIU is warranted from September 28, 2017. REASONS FOR REMAND 1. TDIU prior to September 28, 2017 The Veteran contends that he is unable to work as a result of his service-connected disabilities. As set forth above, the Board finds that there was evidence that the Veteran’s bilateral knee and ankle disabilities, along with occupational impairment from his major depressive disorder, prevent him from securing and following substantial gainful employment. The Veteran’s combined disability rating was 30 percent from October 12, 2006 to April 25, 2016, and 40 percent from April 26, 2016, to September 27, 2017. Therefore, he does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) during those periods of time. The issue of entitlement to a TDIU prior to September 28, 2017 has been raised as part of the claim for an increased rating for his service-connected knees. While the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance, it must consider whether a remand for referral to VA’s Director of Compensation for such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, given the above findings, a remand for such a referral is warranted. The matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to September 28, 2017 to the Director of Compensation. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel