Citation Nr: 18145252 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 13-33 006 DATE: October 26, 2018 ORDER A rating in excess of 20 percent for left knee disability with instability is denied. A rating in excess of 10 percent for left knee degenerative joint disease with limitation of motion is denied. A compensable rating prior to January 9, 2012 and in excess of 10 percent rating therefrom for hemorrhoids is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Left knee disability is not more nearly manifested by moderate instability during the appeal period. 2. Left knee arthritis with limitation of motion is not more nearly manifested by flexion limited 45 degrees, extension limited to 10 degrees, or ankylosis of the joint during the appeal period. 3. Prior to January 9, 2010, hemorrhoids were not more nearly manifested by a large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; and from January 9, 2010, hemorrhoids were not more nearly manifested by persistent bleeding and with secondary anemia, or with fissures. 4. The Veteran’s service-connected disabilities preclude him from performing the physical and/or mental acts required to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of left knee surgery with lateral instability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.59, 4.71a, Diagnostic Code 5257. 2. The criteria for a rating of in excess 10 percent for left knee arthritis with limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.59, 4.71a, Diagnostic Code 5010. 3. The criteria for compensable rating prior to January 9, 2012 and in excess of 10 percent rating therefrom for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7336. 4. During the appeal period, the criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to October 2002. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 1. Entitlement to a rating in excess of 20 percent for left knee disability with instability. 2. Entitlement to a rating in excess of 10 percent for left knee arthritis with limitation of motion. Issues 1-2. The Veteran contends that his left knee disability warrants higher ratings than assigned. The Veteran’s residuals of left knee surgery with lateral instability are rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. His left knee degenerative joint disease has been rated under the provisions of 38 C.F.R. § 4.71a, DC 5010. The Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent for left knee disability with instability. The Board further concludes that the preponderance of the evidence is against a rating in excess of 10 percent for left knee degenerative joint disease with limitation of motion. Neither the lay nor the medical evidence more nearly reflect the criteria for higher ratings. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.59, 4.71a, Diagnostic Code 5010, 5256-5263. DCs 5003 and 5010 provide that degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate DC for the specific joint or joints affected. Under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and, a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. As to left knee instability, the Board observes that the evidence does not more nearly reflect severe instability of the left knee joint. A January 2011 VA examination reflects recent arthroscopic surgery. See January 2011 VA Examination. The Veteran’s treatment records show he had arthroscopic debridement of the lateral meniscus in October 2010. He was directed to remove his surgical dressing in two days, and weight bear as tolerated on his left lower extremity with crutches. See October 2010 VA Medical Record. There was no medial, lateral, anterior or posterior instability or subluxation noted at the January 2011 VA examination. The Veteran reported his history of recent knee surgery but no incapacitating episodes in the last 12 months. A January 2012 VA examination in January 2012 reflects negative findings for medial, lateral, anterior or posterior instability or subluxation. See January 2012 VA examination. The examiner also noted no additional limitations due to fatigability pain, weakness, or incoordination on repetitive use. An October 2017 VA examination revealed findings for slight lateral instability and history of slight recurrent subluxation. The Veteran reported use of a knee brace for his left knee condition. Left knee stability testing showed anterior, posterior, medial, and lateral instability of 0-5 millimeters. The Veteran reported constant use of a brace and walker, and regular use of a cane. See October 2017 VA Examination. As to arthritis with limited motion of the joint, the Board observes that the disability is not more nearly manifested by flexion limited 45 degrees, extension limited to 10 degrees, or ankylosis of the joint. At worst, flexion was limited to 70 degrees on VA examination in 2011. More recently, on VA examination in October 2017, flexion was limited to 110 degrees on flexion. The medical evidence consistently reflects that extension is full. The Board has considered whether a higher or separate evaluation is available under any other potentially applicable schedular provision. However, a higher or separate rating is not warranted in the absence of medical findings for ankylosis; frequent episode of locking, pain and joint effusion; dislocated semilunar cartilage, symptomatic removal of cartilage, impairment of the tibia or fibula, or genu recurvatum. It is noted that, although the Veteran has had arthroscopic surgery in the past, he did not have his meniscus removed. The record shows that he has remaining function of the left lower extremities such that he would not be equally well-serviced by amputation with prosthesis. The Board has considered 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). However, there is no indication that there is functional impairment beyond that contemplated by the assigned separate schedular evaluations. In this regard, pain is contemplated in the assigned schedular rating for arthritis to include that associated with weight bearing. Although the Veteran is competent to report his symptoms, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for higher evaluations based on arthritis with limitation of motion or knee impairment with recurrent subluxation or lateral instability. To warrant a higher rating, there must be the functional equivalent of flexion limited to 45 degrees or worse, or extension limited to 10 degrees or worse. To warrant a higher rating under Diagnostic Code 5257, there must be the functional equivalent of “severe” knee impairment (i.e. severe recurrent subluxation or lateral instability). Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability ratings, his complaints along with the medical findings do not meet the schedular requirements for higher evaluations than now assigned, as explained and discussed above. Weighing the evidence of record, the Board finds that the preponderance of the evidence is against the claims for increase. Also, staged ratings are not warranted here because the factual findings do not show any distinct period where the disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Accordingly, the claims for increase are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 3. Entitlement to a compensable rating prior to January 9, 2012 and in excess of 10 percent rating therefrom for hemorrhoids. The Veteran contends he is entitled to an increased evaluation for hemorrhoids. The Veteran’s hemorrhoids are rated under 38 C.F.R. § 4.114, DC 7336. The Board concludes that the preponderance of the evidence is against a compensable rating prior to January 9, 2012 and in excess of 10 percent rating therefrom for hemorrhoids. Neither the lay nor the medical evidence more nearly reflect the criteria for higher ratings. 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7336. Prior to January 9, 2010, hemorrhoids were not more nearly manifested by a large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; and from January 9, 2010, hemorrhoids were not more nearly manifested by persistent bleeding and with secondary anemia, or with fissures. Diagnostic Code 7336 provides a 0 percent rating for mild or moderate hemorrhoids; a 10 percent rating for hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; and a maximum 20 percent rating for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. A January 2011 VA examination reflects complaints of hemorrhoid pain and slight bleeding and a history of hemorrhoid surgery. There were no complaints or findings for anemia or persistent bleeding, fissures, or redundant tissue, or symptoms approximating this severity. A January 2012 VA examination reflects complaints of constantly present hemorrhoids with pain, discomfort, and itching. See January 2012 VA examination. There were no complaints or findings for anemia or persistent bleeding, fissures. An October 2017 VA examination reflects complaints of persistent bleeding and frequent occurrence. Examination showed mild or moderate hemorrhoids with no fissures or redundant tissue. Records dated November 14, 2017 show the Veteran underwent surgery for his hemorrhoid disability. See November 2017 Medical Record. The Veteran provided a December 2017 Disability Benefits Questionnaire from Dr. J.L. that noted mild or moderate hemorrhoids with persistent bleeding but without secondary anemia or fissures. See December 2017 Questionnaire. The Board notes a 100 percent evaluation was assigned November 14, 2017, the date of surgery, to December 31, 2017. See April 2018 Rating Decision. From January 1, 2018 a 10 percent evaluation was assigned. The Board has considered whether a higher or separate evaluation is available under any other potentially applicable schedular provision. However, a higher or separate rating is not warranted under any other potentially applicable provision. There is no rectum prolapse or stricture or evidence of impaired sphincter control with extensive leakage and fairly frequent involuntary bowel movements. 38 C.F.R. § 4.114, Diagnostic Codes 7332-7335. Although the Veteran believes a higher rating is warranted, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. However, his complaints along with the medical findings do not meet the schedular requirements for a higher rating before or after January 9, 2012. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 4. Entitlement to TDIU. The Veteran asserts entitlement to TDIU. See December 2010 VA from 8940; see also August 2011 VA Form 8940. The Board concludes that, resolving all doubt in the Veteran’s favor, the criteria for TDIU are met. The Veteran’s service-connected disabilities preclude him from performing the physical and/or mental acts required to obtain or retain substantially gainful employment. 38 C.F.R. §§ 4.3, 4.16, 4.18, 4.19. TDIU is granted where service-connected disabilities are so severe that the Veteran is unable to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration is given to the Veteran's level of education, special training, and previous work experience. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran meets the criteria for schedular TDIU pursuant to 38 C.F.R. § 4.16(a). He has service connected disability that the meets the numeric standard and sufficient physical limitations to preclude substantially gainful employment. The Veteran is service-connected for heart disease (60%); pes planus (50%); right knee instability (20%); left knee instability (20%); genitourinary disorders (20%); left shoulder disability (20%); left knee arthritis with limited motion (10%); right knee arthritis with limited motion (10%); right bunionectomy (10%); left ankle disability (10%); right ankle disability (10%); scars (10%); hemorrhoids (10%); and multiple non-compensable disorders. The combined rating has been 100 percent since July 27, 2016. Although the record shows that the Veteran has a college education and last worked as a certified system engineer in 2009, indicating that he may have significant, transferrable employment skills, the record further suggests that he has functional impairment of the upper and lower extremities impairing his ability to stand or walk for extended periods, or use left arm; he has diminished functional capacity due hemorrhoid pain impacting his ability to remain seated for extended periods of time without frequent breaks, and he has heart related symptoms that would interfere with successful employment. Resolving all doubt in favor of the Veteran, the Board finds that the sum of service-connected disabilities precluded substantially gainful employment, even sedentary type. See Geib v. Shinseki, 733 F.3d 1350 (2013) (holding that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). Accordingly, the claim is granted. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trickey, Jonathan