Citation Nr: 18149179
Decision Date: 11/08/18	Archive Date: 11/08/18

DOCKET NO. 16-38 131
DATE:	November 8, 2018
ORDER
An initial compensable rating for right knee limitation of flexion is denied.
A separate rating of 20 percent for right knee dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is granted throughout the claim period.
A total disability rating based on individual unemployability is granted on a schedular basis from June 7, 2010.
A total disability rating based on individual unemployability is granted on an extraschedular basis from October 14, 2009.
A rating of 10 percent for right knee ligamentous laxity is restored, effective May 1, 2014.
A rating of 30 percent for right knee limitation of extension is restored, effective May 1, 2014.
VETERAN’S CONTENTIONS
The Veteran is seeking an initial compensable rating for right knee limitation of flexion. He is also seeking the reinstatement of ratings of 30 percent and 10 percent for right knee ligamentous laxity and limitation of extension, respectively. These ratings have been reduced to 20 percent and 0 percent, respectively, effective May 1, 2014. The Veteran contends that these ratings suggest that his knee condition has improved, and do not accurately reflect the severity of his disabilities. Specifically, he asserts that his knee disabilities, along with his service-connected back disability, prevent him from walking more than twenty feet, and from standing for more than five minutes unsupported.
The Veteran is also seeking a total disability rating based on individual unemployability (TDIU). The Veteran contends that he has been unable to secure or maintain a substantially gainful occupation since 2009, due to his service connected back and knee disabilities.
FINDINGS OF FACT
1. The Veteran’s right knee limitation of flexion has manifested in no more than flexion limited to 50 degrees throughout the claim period. See VA Examinations dated June 2010, June 2011, December 2013.
2. The Veteran’s right knee disability has manifested in symptoms of frequent locking, pain, and effusion throughout the claim period. See VA Examinations dated June 2010, June 2011, December 2013; VA Treatment Records dated June 2011, November 2013.
3. The Veteran has been unable to secure or maintain a substantially gainful occupation due to his service-connected back and knee disabilities since October 14, 2009. See February 2010 Notice of Disagreement; VA Examinations dated June 2011, December 2013.
4. A February 2014 rating decision reduced the Veteran’s rating for right knee ligamentous laxity from 10 percent disabling to 0 percent disabling. Up to the time of the February 2014 rating decision, the Veteran’s right knee ligamentous laxity had manifested in slight lateral instability. See VA Examinations dated June 2010, June 2011, December 2013.
5. The February 2014 rating decision reduced the Veteran’s rating for right knee limitation of extension from 30 percent disabling to 20 percent disabling. Up to the time of the February 2014 rating decision, the Veteran’s right knee limitation of extension had manifested in extension limited to 20 degrees. See VA Examinations dated June 2010, June 2011, December 2013.
6. Evidence post-dating the reduction of the 30 and 10 percent ratings does not demonstrate sustained improvement of either limitation of extension or instability.
CONCLUSIONS OF LAW
1. The criteria for an initial compensable rating for right knee limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260.
2. The criteria for a separate rating of 20 percent for right knee dislocated semilunar cartilage are met throughout the claim period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5258.
3. The schedular criteria for a total disability rating based on individual unemployability are met from June 7, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16.
4. The criteria for a total disability rating based on individual unemployability on an extraschedular basis are met from October 14, 2009. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16(b).
5. The reduction of a rating of 10 percent to 0 percent for right knee ligamentous laxity was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.344(a).
6. The reduction of a rating of 30 percent to 20 percent for right knee limitation of extension was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.344(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the Marine Corps from August 1974 to September 1976. 
This case is before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and February 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.
Increased Ratings
1. Entitlement to an Initial Compensable Rating for Right Knee Limitation of Flexion
The Veteran’s right knee limitation of flexion is currently rated as noncompensably disabling, under Diagnostic Code (DC) 5260. A compensable rating requires flexion limited to 45 degrees. As noted in the above findings of fact, Veteran’s right knee limitation of flexion has manifested in no more than flexion limited to 50 degrees throughout the claim period. 
The only evidence to the contrary is a note in a June 2011 VA examination, which states that the Veteran “would not either actively or passively flex his knee past 10 degrees while lying on the table.” However, the examiner also noted that when seated the Veteran “had knee flexion to 90 degrees without difficulty.” The Board has the responsibility to interpret VA examinations in light of the entirety of the record, and to reconcile various examinations into a consistent disability picture. 38 C.F.R. § 4.2. VA examinations in June 2010 and December 2013 yielded findings of flexion limited to 70 and 50 degrees, respectively.
Interpreting the June 2011 VA examination in light of the entirety of the record, the Board finds that the evidence is not equally balanced as to whether the Veteran had flexion limited to 45 degrees. Rather, in light of the examiner’s observation of the Veteran’s seated range of motion and of the findings of the two other VA examinations of record, the preponderance of the evidence indicates that he did not. Therefore, the Board finds that throughout the claim period the Veteran’s right knee flexion was limited at most to 50 degrees, as reflected on the December 2013 VA examination.
The Veteran has claimed entitlement to an increased rating on the basis of pain. However, the Veteran’s knee pain is contemplated in a separate compensable rating for right knee dislocation of semilunar cartilage, granted herein. VA regulations prohibit the evaluation of the same manifestation of disability under different diagnoses. 38 C.F.R. § 4.14. For this reason, an increased rating for right knee limitation of flexion on the basis of pain is not warranted.
Therefore, because the Veteran’s right knee limitation of flexion has manifested in no more than flexion limited to 50 degrees throughout the claim period, an initial compensable rating is not warranted.
2. Entitlement to a Separate Compensable Rating for Right Knee Dislocated Semilunar Cartilage
Under DC 5258, a rating of 20 percent is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The Veteran has reported frequent episodes of locking and swelling since his first VA examination, in June 2010. Furthermore, effusion into the joint was confirmed objectively by X-rays in June 2011 and November 2013. Therefore, the Board finds that a rating of 20 percent is warranted throughout the claim period for right knee dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.
3. Entitlement to a TDIU
Schedular TDIU
A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling.  38 C.F.R. § 4.16(a). Here, the Veteran has a combined disability rating of 70 percent since June 7, 2010, with one disability rated at least 40 percent disabling, namely lumbar spondylosis and degenerative disc disease. Therefore, the percentage requirement is met in this case.
The remaining issue is whether the Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central question is whether the Veteran’s service-connected disabilities alone were of sufficient severity to produce unemployability, taking into consideration the Veteran’s education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
The Veteran was employed as a ship builder from between 1997 and 1999 to 2009. See June 2011 VA Examination. The Veteran reported that in 2009 he worked only briefly. He raised the issue of entitlement to a TDIU in a February 2010 notice of disagreement, in which he stated that he was no longer able to work “because of my injuries from a wreck while in service.” 
Following a June 2011 VA examination, the examiner opined that the Veteran was unable to perform prolonged walking, standing, or lifting, although his disabilities would not prevent him from pursuing sedentary employment. The Veteran reported to the examiner that he been forced to quit his work due to his depression and “diffuse body aches.” At a December 2013 VA examination, the examiner noted the Veteran was using a wheelchair and was unable to ascend to the examination table.
There is evidence, then, both that the Veteran’s difficulty working was due partly to his depression—and so not to his service-connected disabilities—and that he is still able to pursue sedentary employment, as opined by the June 2011 examiner. Nevertheless, in light of Veteran’s early and consistent reports that he has been unable to work due to physical injuries, specifically his service-connected knee and back disabilities, and in light of his occupational history as a shipbuilder, the Board finds that the evidence is at least equally balanced as to whether or not the Veteran has been unable to secure or maintain a substantially gainful occupation. 
Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation throughout the claim. 38 C.F.R. § 4.3. Accordingly, a TDIU is warranted from the date of his schedular eligibility, June 7, 2010.
Extraschedular TDIU
Although the Veteran’s disabilities do not meet the required minimum ratings before June 7, 2010, “[i]t is the established policy of the Department of Veterans Affairs 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.” 38 C.F.R. § 4.16(b). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums.
For the reasons given above, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities since October 14, 2009, the effective date of his first service-connected disability, lumbar spondylosis and degenerative disc disease. See 38 C.F.R. § 4.2, 4.3. Accordingly, a TDIU is warranted from that date on an extraschedular basis.
Reductions
4. The Propriety of Rating Reductions for Right Knee Ligamentous Laxity and Limitation of Extension
Disability ratings will be reduced only when, upon review of the entire recorded history of a service-connected condition, the preponderance of the evidence reflects an actual change in the disability, and the examination reports reflecting such change are based upon thorough examinations. Brown v. Brown, 5 Vet. App. 413, 421 (1993) (citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991)).
Here, the Veteran’s disability ratings for right knee ligamentous laxity and limitation of extension were reduced following a June 2011 examination which yielded a diagnosis of “no objective evidence for any right knee condition,” and recorded no limitation of extension. However, a June 2011 MRI scan of the right knee revealed small effusion and degenerative joint disease at the patellofemoral joint. On this basis, a December 2012 VA examination made a diagnosis of right knee arthritis, although he failed to record range of motion findings for the right knee. A December 2013 VA examination recorded a diagnosis of chronic right knee strain, and noted extension limited to 15 degrees.
Prior to the June 2011 examination, a June 2010 VA examination had yielded a diagnosis of right knee ligamentous laxity and chronic strain. The June 2010 examiner recorded extension limited to 20 degrees. Furthermore, the Veteran consistently reported right knee locking and instability, including at the June 2011 examination.
The Board has the responsibility to interpret VA examinations in light of the entirety of the record, and to reconcile various examinations into a consistent disability picture. 38 C.F.R. § 4.2. Interpreting the June 2011 VA examination in light of the entirety of the record, and especially in light of the subsequent findings of right knee arthritis and limitation of motion, and the Veteran’s consistent reports of instability, the Board finds that the preponderance of the evidence does not reflect an actual change in the Veteran’s disabilities, such that the Board can be “reasonably certain that the improvements will be maintained under the ordinary conditions of life.” Brown, supra, at 419 (citing 38 C.F.R. § 3.344(a); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992); Schafrath v. Derwinski, 1 Vet. App. 589, 594–95 (1991)).
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Therefore, the reductions of ratings for right knee ligamentous laxity and limitation of extension were improper. Accordingly, ratings of 10 percent for right knee ligamentous laxity and 30 percent for right knee limitation of extension are restored, effective May 1, 2014.
 
S.C. KREMBS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	P. Timmerman, Associate Counsel