Citation Nr: 18149217 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-19 325 DATE: November 9, 2018 ORDER 1. Entitlement to a disability rating of 20 percent, but no higher, for right knee disability based upon limitation of flexion and degenerative joint disease is granted. 2. Entitlement to a separate 10 percent disability rating, but no higher, for a right knee disability based upon limitation of extension and degenerative joint disease is granted. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) as due to service-connected disabilities is granted. FINDINGS OF FACT 1. The probative evidence of record reflects that the right knee disability has been productive of, at worst, flexion limited to 30 degrees, extension limited to 10 degrees and X-ray evidence of degenerative joint disease. 2. Affording the benefit of the doubt, the probative evidence of record indicates that the Veteran’s service-connected disabilities have rendered him unable to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent, though no higher, for a right knee disability based on limitation of flexion with degenerative joint disease have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003, 5260. 2. The criteria for a separate disability rating of 10 percent, though no higher, for a right knee disability based on limitation of extension with degenerative joint disease have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DCs 5003, 5261. 3. The criteria for entitlement to a TDIU have been met. 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1953 to March 1956. The TDIU claim has been raised as part and parcel of the claim for an increased rating for the right knee during the pendency of this appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). This case was previously remanded by the Board in June 2017 and February 2018 for additional development, including a new VA examination of the right knee in compliance with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). A review of the claims file reveals that the July 2017 and June 2018 VA examination reports included only active range of motion findings and do not include range of motion findings for passive range of motion and do not specify whether the results are weight-bearing or non-weightbearing. The June 2018 VA examiner stated that there was objective evidence of pain on passive range of motion of the right or left knee and no evidence on pain on non-weight bearing of the right or left knee. Remanding for another VA examination, however, would not remedy the lack of testing performed at the July 2017 and June 2018 VA examinations. While objective evidence of pain was noted on active and passive range of motion in both examinations, the examiners noted they were unable to describe pain limitations in terms of range of motion. As there is no evidence showing that the Veteran would have compensable limitation of flexion on passive motion, even considering limitation due to pain, the Board is satisfied that the development requested by its June 2017 and February 2018 remands has now been satisfactorily completed and substantially complied with respect to the right knee disability. See Stegall, 11 Vet. App. 268 (1998). 1. Increased Ratings for the Right Knee Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different “staged” ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Mitchell, 25 Vet. App. 32. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran’s right knee disability is currently rated under 38 C.F.R. § 4.71a, DC 5003-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. In this case, right knee disability demonstrates noncompensable limitation of flexion under DC 5260 and he was therefore awarded a 10 percent rating under DC 5003 on the basis of x-ray evidence of degenerative arthritis. See 4.71a, DCs 5003, 5261. DC 5003 provides ratings for degenerative arthritis. Degenerative arthritis (osteoarthritis or hypertrophic) 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensably disabling under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. In the absence of limitation of motion, a 10 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. In Notes (1) and (2) in DC 5003, it is indicated these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Id. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. DC 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Under DC 5258, dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. 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). DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. 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). Separate disability ratings are possible for arthritis with limitation of motion under DC 5003 (providing rating for arthritis) and instability of a knee under DC 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). When x-ray findings of arthritis are present and a veteran's knee disability is rated under DC 5257, the veteran would be entitled to a separate compensable rating under DC 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003/5010 and 5257, respectively, and that a separate rating could also be provided for limitation of knee extension and flexion of the same knee joint. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The Board finds that the Veteran’s service-connected right knee disability is entitled to a 20 percent disability rating based upon limitation of flexion with degenerative joint disease under DC 5260; however, his right knee disability is also entitled to a separate 10 percent disability rating based upon limitation of extension with degenerative joint disease under DC 5261. In this case, the medical evidence of record, including the private and VA treatment records as well as the February 2013, April 2014, May 2016, July 2017 and June 2018 VA examinations, demonstrates that the right knee disability was productive of, at worst, flexion limited to 30 degrees, extension limited to 10 degrees and X-ray evidence of degenerative joint disease. While the Board observes that range of motion testing in VA outpatient treatment reports and VA examinations throughout the period of the appeal demonstrates flexion limited from 90 to 100 degrees and extension limited from zero (0) to 10 degrees, the July 2017 VA examiner commented at the end of his examination report that the right knee degenerative arthritis had progressed and showed a limitation of flexion of 30 degrees on the current examination, although range of motion testing demonstrated findings from 0 to 110 degrees at that time. Therefore, a higher disability rating of 20 percent, though no higher, under DC 5260 for limitation of flexion with degenerative joint disease and a separate 10 percent disability rating, though no higher, under DC 5261 based on limitation of extension with degenerative joint disease is warranted. The Board acknowledges the Veteran’s complaints of significant pain in his right knee required by 38 C.F.R. § 4.40, 4.45, 4.59, consistent with the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995). See also Voyles v. Brown, 5 Vet. App. 451, 454 (1993). The Board has considered his complaints of pain, the objective range of motion findings, the July 2017 VA examiner’s additional comment of flexion limited to 30 degrees and the VA examination notations of limitations with standing and walking in assigning higher ratings under DC 5260 and DC 5261. 38 C.F.R. § 4.71a. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board observes that, at no time during the period of the appeal, has the probative evidence of record demonstrated the presence of instability of the right knee. Although the Veteran has reported having instances of his knees giving out and instability, all joint stability tests in the VA examinations revealed normal findings and the July 2017 VA examiner found that the Veteran’s report of instability and falling are attributable to his non-service-connected foot drop of the left foot. The July 2017 VA examiner specified that foot drop was a gait abnormality that is caused by weakness, irritation or damage to the sciatic nerve or paralysis of the muscles at the anterior portion of the lower leg which resulted in a gait that was scraping the toes across the ground. The VA examiner noted that a gait abnormality caused by foot drop was more likely than not what caused the falls. The VA examiner also noted that the VA medical records document foot drop in November 2015 and that the Veteran did not show any instability at the knees on the current VA examination or any past VA examinations. Thus, consideration of a higher disability rating under DC 5257, pertaining to instability or subluxation, is not for application here. Other potentially applicable DCs also have been considered. As the Veteran’s service-connected right knee disability does not reflect findings of ankylosis, removal or dislocation of the semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum at any time during the pendency of the appeal, DCs 5256, 5258, 5259, 5262 and 5263 do not apply. The evidence weighs against a finding of ankylosis. The Board has considered the lay statements of record regarding the severity of the Veteran’s right knee disability and has relied on these reports in determining appropriate disability ratings under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Accordingly, the Veteran’s right knee disability more nearly approximates a 20 percent disability rating, though no higher, under DC 5260 and a separate 10 percent disability rating, though no higher, under DC 5261 throughout the duration of the appeal. 38 C.F.R. §§ 4.3, 4.7, 4.71a; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. TDIU Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. In this case, the Veteran meets the preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) during the period of the appeal. Id. When viewed as a whole, the evidence supports a finding that the Veteran was not capable of substantially gainful employment as a result of his service-connected disabilities. In his July 2014 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran reported having 2 years of college. He stated that his depression prevented him from securing or following substantially gainful occupation. He stated he last worked in 2010 as self-employed dump truck driver. An October 2014 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, noted that for the Veteran’s employment dates from March 2004 to December 2009, he was employed as a truck driver and owner. The form listed his reason for leaving employment was his knee replacement (of the left knee) and degenerative joint disease, preventing him from driving. He then listed the date he last worked was in December 2011. In the April 2015 VA examination of mental disorders, the Veteran was diagnosed with major depressive disorder, and the examiner found that his inability to work was related to his physical condition and not due to any mental disorder. In a July 2017 VA examination, the VA examiner found the Veteran was not functionally impaired as it related to the right knee disability and could perform light physical employment. He concluded that the service-connected right knee disability does not render him unable to secure and maintain substantially gainful employment. In a September 2018 VA examination, the examiner found that the Veteran’s hearing loss and tinnitus impacted his ability to work because the Veteran had difficulty hearing speech, even with hearing aids, and that his tinnitus affected his concentration and sleep sometimes. The Board notes that the Veteran’s work experience has been primarily in a physical field, and the evidence shows that the Veteran is now limited from physical occupations due to his service-connected knee disabilities. Moreover, while the Veteran had 2 years of a college education, there is no evidence that he has data entry or computer training skills, and this is not a practical limitation for someone seeking gainful employment. Further, the Veteran’s hearing loss and tinnitus would make it difficult for him to communicate with co-workers and customers. Resolving all doubt in favor of the Veteran, the probative evidence of record demonstrates that he was unemployable or capable of no more than marginal employment due to his service-connected disabilities, specifically his service-connected right and left knee disabilities and depression. In considering his education, employment history as a self-employed truck driver and that he stopped working due to his depression and knee disabilities, the April 2015 VA examiner’s findings that his inability to work was related to his physical condition and not due to any mental disorder, and the fact that the Veteran’s depression was found to be due to his service-connected knee disabilities, the Board finds that any employment he had or was capable of during the appeal period was marginal. Accordingly, the criteria for a TDIU are met. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saira Spicknall, Counsel