Citation Nr: 18146562 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 12-01 396 DATE: October 31, 2018 ORDER 1. Entitlement to a rating in excess of 10 percent prior to January 10, 2014, and in excess of 30 percent thereafter, for status post medial and lateral meniscectomy with traumatic arthritic changes, right knee, is denied. 2. Entitlement to a rating in excess of 10 percent prior to January 10, 2014, and in excess of 20 percent thereafter, for status post medial and lateral meniscectomy with traumatic arthritic changes, left knee, is denied. 3. Entitlement to a separate 10 percent rating prior to September 12, 2014 for bilateral knee instability is granted. 4. Entitlement to a separate 30 percent rating from September 12, 2014 for bilateral knee instability is granted. 5. Entitlement to a separate rating of 10 percent for symptomatic bilateral status post medial and lateral meniscectomy with traumatic arthritic changes have been met. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to January 29, 2010, is remanded. FINDINGS OF FACT 1. Bilateral knee status post medial and lateral meniscectomy with traumatic arthritic changes was productive of limitation of flexion and extension, pain, tenderness, stiffness, weakness, giving way, locking, clicking or snapping, grinding, crepitus, pain on movement, less movement than normal, deformity, disturbance of locomotion, interference with sitting, standing, and weight-bearing, and severe flare-ups; without evidence of ankylosis, impairment of the tibia and fibula, dislocated semilunar cartilage with effusion into the joint, or genu recurvatum. 2. Prior to September 12, 2014, bilateral knee status post medial and lateral meniscectomy with traumatic arthritic changes was productive of no more than slight lateral instability. 3. From September 12, 2014, bilateral knee status post medial and lateral meniscectomy with traumatic arthritic changes was productive of moderate to severe lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to January 10, 2014, and in excess of 30 percent thereafter, for status post medial and lateral meniscectomy with traumatic arthritic changes, right knee, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5261 (2018). 2. The criteria for a rating in excess of 10 percent prior to January 10, 2014, and in excess of 20 percent thereafter, for status post medial and lateral meniscectomy with traumatic arthritic changes, left knee, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5261 (2018). 3. The criteria for a separate rating of 10 percent for right knee instability, prior to September 12, 2014, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2018). 4. The criteria for a separate rating of 10 percent for left knee instability, prior to September 12, 2014, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2018). 5. The criteria for a separate rating of 30 percent for right knee instability, from September 12, 2014, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2018). 6. The criteria for a separate rating of 30 percent for left knee instability, from September 12, 2014, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2018). 7. The criteria for a separate rating of 10 percent for status post medial and lateral meniscectomy with traumatic arthritic changes, right knee, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2018). 8. The criteria for a separate rating of 10 percent for status post medial and lateral meniscectomy with traumatic arthritic changes, left knee, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1967 to October 1970 and January 1986 to April 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision issued by the VA Regional Office (RO) in St. Petersburg, Florida. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2014 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. Increased Rating The Veteran has contended that a higher rating is warranted for his service-connected knee disabilities. The Veteran’s had bilateral knee flexion from zero to 130 degrees in December 2008. In October 2009, the Veteran was afforded a VA examination. The Veteran had a bilateral meniscectomy in 1980 that resulted in pain, limited range of motion, and arthritis. He reported pain, stiffness, weakness, decreased speed, giving way, and daily locking, severe flare-ups, and impairment of functional motion. He occasionally used a walker or cane. He had been advised to have bilateral total knee replacement. Upon physical examination, he had an antalgic gait. There was evidence of bilateral knee crepitus, tenderness, guarding of movement, clicking or snapping, and grinding. Additionally, a mass was located behind his right knee. Although a bilateral meniscus abnormality was indicated, there was no locking, effusion, dislocation, or evidence of meniscal surgery present. Further, there was no evidence of joint ankylosis, instability, or patellar abnormality. He had left knee flexion of zero to 110 degrees and right knee flexion of zero to 90 degrees, both with objective evidence of pain. Extension was normal. There was objective evidence of pain following repetitive motion. However, the Veteran’s range of motion was not additionally limited after repeated motion. The Veteran was provided a VA examination in November 2011. He reported increased bilateral knee pain since the last VA examination. His pain level was also higher due to changes in the weather and prolonged weight bearing. Additionally, he reported severe flare-ups in both knees that occurred every three months for two to three days. He occasionally used a walker or cane. Upon physical examination, he had left and right knee flexion of zero to 125 degrees, both with objective evidence of pain at zero degrees. Extension was normal. Following repeated use, the Veteran’s range of motion and associated pain remained the same and it was not additionally limited. The abnormal range of motion findings did contribute to functional loss, to include pain on movement, less movement than normal, deformity, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. He experienced tenderness or pain to palpation for joint line or soft tissues of both knees. He had normal muscle strength and joint stability. He did not have a history or any evidence of patellar subluxation/dislocation. A November 2010 diagnostic test revealed a varus deformity when standing and bone on bone in the medial compartments, with the left knee worse than the right. Other than scars, the examination was unremarkable for any other pertinent physical findings, complications, conditions, signs, and symptoms. In January 2014, the Veteran underwent a private bilateral knee evaluation. He reported moderate and intermittent bilateral knee pain that was sharp, stabbing, throbbing, aching and burning in quality. Additionally, he experienced swelling, tingling, weakness, locking/catching, giving way, and stiffness in both knees. He stated that his symptoms were worse with standing, walking, lifting, stairs, exercise, squatting, and kneeling. Upon physical examination, the alignment of the Veteran’s right knee was normal but his left knee had varus. Right knee motion was -20 to 90 degrees with pain. Left knee motion was -15 to 125 degrees with minimal pain. In addition, there was evidence of bilateral crepitus and tenderness along both medial and lateral joint lines. In a November 12, 2014 VA treatment note, the Veteran complained of falling two months prior. The Veteran underwent a bilateral knee examination in December 2014. He reported severe knee arthritis and stated that he could not straighten his right knee completely and his left knee went out if he stepped incorrectly on it. He described continuous right knee pain, an inability to bend or straighten his right knee fully, stiffness with prolonged sitting, and pain and swelling with prolonged standing and walking. With regard to his left knee, he reported that it would give way and he would fall. He did not report any functional impact due to flare-ups. However, as described above, he stated that he experienced functional loss with repeated use. Upon physical examination, he had left knee flexion of zero to 125 degrees with pain. Left knee extension was normal. He had right knee flexion of 10 to 95 degrees and extension of 95 to 10 degrees, with pain. The abnormal range of motion or pain did not result in functional loss in the Veteran’s left knee. By contrast, the abnormal flexion and extension as well as pain in the Veteran’s right knee resulted in functional loss, to include an inability to straighten knee and an antalgic gait. Additionally, there was evidence of pain with weight bearing and objective evidence of tenderness or pain to palpation for joint line or soft tissues of both knees. Following repeated use, there was no additional functional loss or range of motion, bilaterally. Joint stability test findings revealed slight lateral instability in the Veteran’s left knee. He had a history of bilateral recurrent effusion. There was objective evidence of crepitus of both knees. In September 2017, the Veteran was provided an additional VA examination, pursuant to a July 2017 Board remand. Since his last VA examination, the Veteran reported that his bilateral knee disability was worse. He described daily and constant pain and stiffness, frequent swelling, locking, giving way/collapse, and flare-ups. He stated that he could not kneel or squat, bend his knees, or walk or stand for long periods. He occasionally used a cane for walking. Upon physical examination, he had left knee flexion of zero to 80 degrees and extension of 80 to zero degrees, with pain. He had right knee flexion of 10 to 90 degrees and extension of 90 to 10 degrees, with pain. Bilateral knee flexion, extension, and pain resulted in functional loss, to include less motion. There was evidence of tenderness or pain to palpation for joint line or soft tissues of both knees. Additionally, there was evidence of pain with weight bearing. The examiner noted that all range of motion testing was conducted on non-weightbearing to avoid hurting the Veteran with passive range of motion and weightbearing. Following repeated use, there was no additional functional loss or range of motion, bilaterally. The Veteran’s range of motion findings remained the same after repeated use. For flare-ups and after repetitive use over time, the examiner was unable to say without resort to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability. The examiner stated that any decrease in range of motion with repeated use over time or during a flare-up was merely speculative and highly subjective (on the Veteran’s word alone) as neither the examiner nor any other medical provider was present to objectively and repetitively measure the change in range of motion with repeated use over time or during a flare-up. Additionally, the examiner stated that the Veteran denied objectively and repetitively measuring his range of motion with repeated use over time or during a flare-up. Further, the examiner noted that the Veteran did not have a flare-up during the examination. However, the examiner observed that the Veteran was ambulating slowly without assistance with a slight limp to his right. The examiner also noted that the Veteran had a generalized bony enlargement in his right knee and a bony prominence on the medial aspect of his left knee. The examiner noted that it was difficult to fully assess instability of the Veteran’s knees due to the Veteran’s difficulty in keeping his knees properly flexed for the tests. The examination was unremarkable for any other pertinent physical findings, complications, conditions, signs, and symptoms, not already described above. With regard to a retrospective opinion on severity of the Veteran’s bilateral knee disability, range of motion findings, and additional functional impairment since 2009, the September 2017 VA examiner stated that range of motions pertaining to the knee, in general, were not the same each time and could be affected by a variety of factors, including the intensity/severity of pain, absence of any swelling, sites close to knee, infection/inflammation, injury/fall, time of examination, subjective mood of the individual, medications, some expected variations from examiner to examiner, type/intensity of activities close to the time of the examination, and/or weather conditions. Additionally, the examiner stated that he was unable to comment on retrospective input from different providers who examined the Veteran in the past because it all depended on each examiner’s reasoning on those exams. To the extent that the September 2017 VA examiner could not provide an opinion regarding functional impairment during a flare-up or with repetitive use, the examination is still adequate even with consideration of the United States Court of Appeals for Veterans Claims (Court) decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, the Board recognizes that, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 required that VA medical examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In this regard, the Board finds that the VA examiner has considered all procurable and assembled data. Further, as noted above, the examiner was unable to conduct certain testing to avoid hurting the Veteran. Thus, the examiner’s inability to provide an opinion was not a limitation due to lack of expertise, insufficient information, or unprocured testing of an individual examiner. A review of VA treatment records show that the Veteran complained of falling due to his right knee giving out in June 2018. As such, the aforementioned evidence reflects that the Veteran’s bilateral knee disability has been manifested by pain, tenderness, stiffness, weakness, giving way, locking, clicking or snapping, grinding, crepitus, pain on movement, less movement than normal, deformity, disturbance of locomotion, interference with sitting, standing, and weight-bearing, and severe flare-ups throughout the appeal period. Although the Veteran had limitation in motion prior to January 10, 2014, the range of motion findings of record do not demonstrate bilateral knee flexion limited to 30 degrees or extension limited to 15 degrees to warrant a higher rating under Diagnostic Codes 5260 or 5261. 38 C.F.R. § 4.71a. After January 10, 2014, the range of motion findings of record do not demonstrate left knee flexion limited to 15 degrees or extension limited to 20 degrees and right knee extension limited to 30 degrees to warrant a higher rating under Diagnostic Codes 5260 or 5261. Further, the private range of motion findings in January 2014 indicated that the Veteran had hyperextension of the bilateral knees which, if the rating criteria were applied correctly, would have warranted a rating under Diagnostic Code 5263 for genu recurvatum or a separate rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability. Id. Nonetheless, the September 2017 VA examination revealed that the Veteran had extension limited to at most 10 degrees in his right knee and normal extension in his left knee with no objective hyperextension in either knee. Additionally, the Board finds that, throughout the appeal period, the weight of the evidence demonstrates that the Veteran had at most slight recurrent subluxation or lateral instability of both the right and left knees under Diagnostic Code 5257. The Veteran reported that his knees gave way and there was objective evidence of a varus deformity in his left knee. As such, resolving reasonable doubt in the Veteran’s favor, the Board finds that a separate rating of 10 percent is warranted for his bilateral knee disability from August 31, 2009. Id. Since September 2014, VA treatment records and December 2014 VA examination results reveal that the Veteran had incidents of falling due to his right and left knee giving way. As such, the Board finds that the weight of the evidence demonstrates that the Veteran had moderate to severe recurrent subluxation or lateral instability of the bilateral knees under Diagnostic Code 5257. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that objective evidence reveals that his bilateral knee disability warrants a higher rating of 30 percent from September 12, 2014. Id. For the entire appeal period, the Board notes that following the Veteran’s bilateral knee meniscectomy in 1980, he experienced bilateral knee pain, locking, giving way, crepitus, and tenderness, but did not have effusion or dislocation of the semilunar cartilage. Therefore, the Board finds that a separate or an increased rating is not available under Diagnostic Code 5258. The Veteran, however, is entitled to a separate schedular rating of 10 percent for “symptomatic” status post medial and lateral meniscectomy with traumatic arthritic changes under Diagnostic Code 5259. Id. As there is no evidence of record showing that the Veteran has ankylosis, impairment of the tibia and fibula, or genu recurvatum, Diagnostic Codes 5256, 5262, and 5263, respectively, are not applicable. Id. Although there is X-ray evidence of arthritis in both knees, there is no indication of occasional incapacitating exacerbations to warrant a higher rating under Diagnostic Code 5003. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca v. Brown, 8 Vet. App. 202 (1995). However, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigability, incoordination, or weakness, resulted in additional limitation of function so as to meet the criteria for a higher evaluation. Although evidence of pain is an important factor for consideration, the Court has held that “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss. Id. Here, there is no objective evidence that the Veteran’s pain results in additional functional loss that would warrant a higher rating. The Board observes that the Veteran complained of pain on numerous occasions, and that the pain was at times sharp, stabbing, throbbing, aching and burning in quality. On this record, however, the Board finds that the effect of the pain in the Veteran’s knees is contemplated by the assigned ratings. To the extent that the Veteran reported that he experienced flare-ups, he did not describe any limitation of motion or features of a bilateral knee disability consistent with the higher rating criteria under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. Moreover, the Board is not required to provide an examination during a flare-up. Voerth v. West, 13 Vet. App. 117, 122 (1999). Thus, the Board properly concludes, based on the facts of record, that the VA examinations conducted accurately reflect the Veteran’s bilateral knee disability. Id. As such, an increased rating is not warranted for the Veteran’s knees under the DeLuca criteria. The Board acknowledges the Veteran’s lay statements regarding the severity of his symptoms. Laypersons are competent to attest to physical symptoms that are experienced or observed. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that the lay evidence describing the symptoms in this case does not establish a greater degree of functional impairment than already contemplated by the ratings already assigned and awarded herein. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that a separate 10 percent rating is warranted for bilateral status post medial and lateral meniscectomy with traumatic arthritic changes from August 31, 2009, pursuant to Diagnostic Code 5259. Additionally, the Board finds that a separate 10 percent rating prior to September 12, 2014, and a 30 percent separate rating thereafter, is warranted for bilateral knee instability, pursuant to Diagnostic Code 5257. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, the Board finds that the preponderance of the evidence is against the claim for an increased rating in excess of 10 percent prior to January 10, 2014, and in excess of 30 percent thereafter, for status post medial and lateral meniscectomy with traumatic arthritic changes, right knee. Additionally, the Board finds that the preponderance of the evidence is against the claim for an increased rating in excess of 10 percent prior to January 10, 2014, and in excess of 20 percent thereafter, for status post medial and lateral meniscectomy with traumatic arthritic changes, left knee. In this regard, the Board finds that there is no doubt of material fact to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b) (2012). The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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 The Veteran has reported that his service-connected disabilities have prevented him from securing or following any substantial gainful occupation prior to January 29, 2010. Prior to January 29, 2010, the Veteran’s combined rating has not been at least 70 percent with a disability, or separate disabilities combinable to at least 40 percent, to include consideration of the bilateral factor and the separate and higher ratings granted herein. Therefore, the Veteran has not met the schedular criteria for assignment of a TDIU prior to January 29, 2010. 38 C.F.R. § 4.16(a) Nevertheless, where a claimant does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU may be referred to Director of VA’s Compensation Service (Director) for extraschedular consideration under 38 C.F.R. § 4.16(b). In October 2003, the Veteran stopped working as a full-time analyst. He later held part-time custodial and security positions from 2004 to 2005 and from 2006 and 2007, respectively. Additionally, he reported that he held temporary positions working in a call center and as a taxi driver. The Veteran’s highest level of education was sophomore year of high school and he testified that he worked in telecommunications for 33 years. He stated that due to his bilateral knee disability he could not remain in one position for a long time and that he needed to stretch and move around. Additionally, in March 2014, the Veteran’s private physician stated that the Veteran was unable to maintain any type of gainful employment due to his service-connected bilateral knee disability and hypertension, among other conditions. Thus, the Board finds that a remand is warranted for such extraschedular referral. 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: 1. The AOJ should refer issue of TDIU to the VA Under Secretary for Benefits or the Director of Compensation for consideration of the assignment of a total rating based on individual unemployability due to service-connected disabilities on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). The response must be associated with the Veteran’s file. 2. After the development requested above is completed, the AOJ should readjudicate the claim. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel