Citation Nr: 18149763 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 06-28 168 DATE: November 14, 2018 ORDER Beginning on July 15, 2004, a separate rating of 20 percent for left knee dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is granted. Prior to September 24, 2014, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise with regard to showing that the Veteran’s service-connected left knee disability has been manifested by dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint throughout the appeal period beginning on July 15, 2004. 2. Prior to September 24, 2014, the preponderance of the evidence is against a finding that the Veteran was unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disabilities. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for a separate rating of 20 percent for left knee dislocated semilunar cartilage have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.45, 4.71a, Diagnostic Code 5258 (2017). 2. Prior to September 24, 2014, the criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1992 to July 1997. He served under honorable conditions in the United States Navy. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This matter was previously before the Board in February 2018, September 2017 (for the purposes of a correction only), February 2017, and November 2011. In November 2011, the claims herein, as well as additional claims since adjudicated, were remanded for further development, to include so that Social Security Administration records could be associated with the claims file together with VA vocational rehabilitation and education records and addendum opinions regarding the Veteran’s employability. In February 2017, the left knee increased rating claim was remanded for an updated VA examination consistent with Correia v. McDonald and a decision regarding TDIU prior to September 24, 2014, was deferred pending resolution of the Veteran’s other claims (the RO granted TDIU beginning on September 24, 2014, in a November 2015 rating decision). In February 2018, the left knee claim was again remanded for compliance with Correia and a determination as to TDIU was deferred once more because the two claims were inextricably intertwined. Since this matter was last before the Board in February 2018, it has been reassigned to the undersigned Veterans Law Judge. 1. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome VA assigns an increased rating for a service-connected disability by comparing a veteran’s history with that disability from one year prior to when the claim was filed against criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Schedule is based on the average reduction in earning capacity in civilian occupations resulting from diseases and injuries associated with service in the armed forces. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If a veteran’s symptoms implicate two different ratings under a single diagnostic code (DC) in the Schedule, then VA will assign the higher rating provided that the symptoms more closely align with the criteria for the higher rating. See 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA’s determination about which rating to assign is also informed by a broad interpretation of the law consistent with the facts of each case and, if there is a reasonable doubt as to the degree of a veteran’s disability, then the doubt will be resolved in the veteran’s favor. See id. § 4.3. After VA assigns a rating, that rating may require re-evaluation in the future in keeping with changes to the veteran’s condition, the law, and medical knowledge. See id. § 4.1. Pyramiding, or the process of rating the same disability under multiple DCs, is to be avoided. See id. § 4.14. However, VA may assign multiple ratings for separate and distinct symptoms so long as none of the symptoms overlap. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Further, although using symptoms from a nonservice connected disability for the purposes of rating a disability that is service connected is prohibited, if it is not possible to distinguish between the respective symptoms because they are so intertwined, then the symptoms will be attributed to the service-connected disability. See 38 C.F.R. §§ 3.102, 4.14; Mittleider v. West, 11 Vet. App. 181, 182 (1998). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Knee disabilities are rated pursuant to DCs 5256 through 5263. See id. § 4.71a. Degenerative arthritis is rated under DC 5003. Id. All applicable rating criteria are to be discussed, in addition to any DCs the Veteran is already rated under. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when a veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s knee disability prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. Additional reference to the Veteran’s knee disability are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. For the purpose of evaluating lay evidence, to include a veteran’s statements about his health conditions, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptoms of an injury or illness (such as pain or the visible flatness of the feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Here, the Veteran is service-connected for left knee patellofemoral syndrome with a rating of 10 percent under DC 5003-5260 based on arthritis with noncompensable limitation of flexion. Pursuant to the April 2018 VA examination report, his left knee conditions include degenerative arthritis confirmed by X-ray, chronic ACL tear, and meniscal tear. The Board notes that the Veteran’s ACL and meniscal conditions are long-standing as evidenced by their notation in medical records at least as early as May 2006. For the purposes of a 20 percent rating under DC 5258, the Board finds that the evidence is at least in equipoise with regard to showing that the Veteran’s service-connected left knee disability with meniscal tear has been manifested by symptoms which equate to dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint throughout the appeal period beginning on July 15, 2004. The competent medical evidence of record shows the Veteran has frequent episodes of left knee pain, to include in an August 2017 VA examination report that is consistent with an April 2010 VA examination report documenting knee pain for many years and on a daily basis as well as a February 2005 VA examination report that describes long-standing, constant knee pain. The February 2005 report also shows complaints of locking consistent with other evidence of record, such as a VA examination report from February 2008 and a VA Board hearing transcript dated May 2011. Pursuant to the May 2006 medical records, a small effusion was noted consistent with the February 2008 VA examination report documenting the presence of a trace effusion and August 2014 VA treatment records showing a small joint effusion. Last, in September 2005 VA treatment records show the Veteran reported that it felt like his knee cap slides off to the side and in August 2013 a physician opined about a loose body in the left knee consistent with statements from the Veteran about feeling aberrant movements within his knee. Although the record also contains contrary evidence regarding the criteria for a rating under DC 5258, such as in the August 2017 VA examination report indicating that there is no history of recurrent effusion like in the April 2018 VA examination report, the Board finds that the evidence is, at least, in equipoise. Accordingly, resolving all reasonable doubt in favor of the Veteran, a 20 percent rating under DC 5258 is warranted throughout the appeal period. DCs 5260 (flexion) and 5261 (extension) address limitation of motion. To reiterate, the Veteran currently has a 10 percent rating under DC 5003-5260 based on arthritis with noncompensable limitation of flexion. Pursuant to the ratings criteria, if the Veteran is assigned a rating for compensable limitation of motion under 5260 then that rating must take the place of his current rating under 5003-5260. In other words, notwithstanding the above grant of a separate rating of 20 percent under DC 5258, if the Veteran is seeking a rating in excess of 10 percent associated with limitation of flexion then he must meet the criteria for a 20 percent rating under 5260. Under DC 5260, a 20 percent rating requires flexion limited to 30 degrees. In addition, a separate rating for limitation of extension may be granted. DC 5261 provides for a 10 percent rating where extension is limited to 10 degrees, and a 20 percent rating requires extension limited to 15 degrees. See 38 C.F.R. § 4.71a. The Board finds that the preponderance of the competent medical evidence is against a higher rating under DC 5260 and is also against a compensable rating for limitation of extension under DC 5261. Pursuant to the April 2018 VA examination report, extension was not limited and flexion was 110 degrees with pain noted by the examiner. At the same time, the examiner also indicated there was no pain on weight bearing and non-weight bearing, nor was there any additional functional loss on repetitive use. Although the examiner opined that it would be speculative to quantify range of motion loss due to flare-ups, the examiner indicated that the Veteran did not report experiencing associated functional loss. As a result, to the extent one was required, the Board finds that a definitive opinion could not be provided because required information was missing and the inability of the examiner to provide an opinion reflects the limitations of knowledge in the medical community at large and not those of this particular examiner. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The Board finds that the competent medical evidence of record is generally consistent with the April 2018 VA examination. The August 2017 VA examination report shows unlimited extension and flexion was 120 degrees with pain. The examiner indicated that there was no pain on weight bearing and non-weight bearing. Although additional range of motion loss was observed following repetitive use, it was only to 115 degrees of flexion, and extension remained unlimited. Further, the examiner opined that functional ability was not additionally limited during flare-ups. September 2010 medical records and a VA examination dated February 2008 show unlimited flexion and extension, and, pursuant to a February 2005 VA examination report, flexion was 130 degrees and extension was unlimited with pain. In sum, the preponderance of the competent medical evidence is against a finding of additional loss of motion due to pain or flare-ups such as would warrant a rating in excess of 10 percent under DCs 5260 and/or a separate rating under 5261. The Board has considered the provisions of 4.40, 4.45, and 4.59, as well as the holdings in the DeLuca and Sharp cases, and finds that the preponderance of the evidence is against granting a higher rating. Turning to the remaining knee DCs, the evidence does not show that the Veteran has ankylosis. Accordingly, a rating under 5256 is not warranted. As to 5257 for recurrent subluxation or lateral instability, the preponderance of the evidence indicates the Veteran does not have either for the purposes of the diagnostic code. Although the evidence shows that he has reported his knee buckling, such symptoms are not contemplated by 5257. See Lyles v. Shulkin, __ Vet. App. __ (2017) (stating that the Federal Circuit has “expressly rejected” the argument “that DC 5257 should be read to include manifestations of knee disability other than recurrent subluxation or lateral instability”). Therefore, a rating under DC 5257 is not warranted. As to DC 5259, the evidence affirmatively demonstrates that the Veteran has not undergone surgery for his meniscus condition. As a result, a rating under this DC is not for consideration. DC 5262 involves impairment of the tibia and fibula. As the preponderance of the evidence does not show that the Veteran’s tibia and fibula are impaired, a rating for this condition is not warranted. Last, DC 5263 implicates genu recurvatum. As the evidence does not show that the Veteran has this condition, a rating under this DC is not warranted. In reaching the above conclusions, the Board has not overlooked the Veteran’s statements regarding the severity of his service connected disability and that a higher rating is warranted and has granted a higher rating as discussed above. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing knee symptoms. See Washington v. Nicholson, 19 Vet. App. 362 (2005). However, although the Board may consider the Veteran’s subjective statements regarding the severity of his disabilities, and has in this case, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have, that these types of findings are not readily observable by a layperson, and that objective medical findings and opinions provided by VA examiners are afforded the greater probative weight. The probative value of medical evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Here, to the extent additional benefits available have not been granted, the Board has determined that the findings and opinions provided by the VA examiners of record should be afforded the greater probative weight. Id. 2. Entitlement to a TDIU prior to September 24, 2014 Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Substantially gainful employment does not refer to an occupation in a particular field or to a veteran’s most recent occupation. To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). This is not to say that the Board is unsympathetic toward a veteran’s nonservice-connected disabilities, only that the Board is prohibited by law from taking them into account for the purposes of TDIU. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. See 38 C.F.R. § 4.15. 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. See 38 C.F.R. § 4.16 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extra schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16 (b). Here, in November 2015 the RO granted TDIU beginning on September 24, 2014. However, the most recent evidence of record indicates that the Veteran had more than marginal employment in 2017 and VA is proposing to reduce his TDIU. Turning to the question of whether a TDIU is warranted prior to September 24, 2014, the Board concludes that the preponderance of the evidence is against a finding that the Veteran was unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disabilities prior to September 24, 2014. Throughout the appeal period prior to September 24, 2014, the Veteran was service-connected for lumbar strain, residuals of left ankle sprain, patellofemoral syndrome of the left knee, left shoulder strain, GERD, DJD of the right knee, arthritis associated with residuals of left ankle sprain, and now, with this decision, left knee dislocated semilunar cartilage. The record shows that the Veteran not only earned his GED during the timeframe at issue, but he also enrolled in and actively pursued a bachelor’s degree- successfully graduating in early 2015. Formerly, the Veteran was a postal worker for approximately 23 years including a mail processing clerk ending in March 2004. In May 2005, a VA physician noted functional limitations caused by the service-connected orthopedic disabilities including decreased activity and difficulty with mobility (sitting, standing and walking), and concluded that the Veteran’s service-connected orthopedic disabilities would not limit all employment but “would limit the patient’s ability to be employed in a physically demanding position.” The clinician noted that the Veteran denied any significant effect of his service-connected GERD on his daily activities and that he “primarily deals with the heartburn on a daily basis.” The opinion was supported by rationale, to include consideration of the Veteran’s lay statements, his medical history, and an in-person physical examination. In May 2006, it was again opined that the Veteran’s service-connected disabilities would “limit the patient’s ability to be employed in a physically demanding position. The patient was previously employed as a postal carrier, a job which required prolonged standing and walking.” However, the examiner noted that the Veteran would not be limited from all employment. VA treatment records dated February and March 2006 show the Veteran was performing yard work and his medical treatment conceived of 30 minutes of bicycle riding and mowing the lawn. As to the newly granted rating under DC 5258, the Board notes that a VA examiner opined in April 2010 that there was no occupational impact due his knee condition. The April 2010 report also showed that the effect of GERD was mild. September 2010 medical records show that his left shoulder condition had a mild impact on his daily activities and his right knee condition had no significant impact. In addition, during the period on appeal to include in May 2014, VA records show the Veteran had several meetings with vocational rehabilitation personnel regarding assistance with resume and transcript issues in connection with applying for three identified federal jobs. VA records from May 2014 also show the Veteran received a tour of a gym and instruction in how to operate all of the gym’s exercise equipment. Although the record also contains evidence, such as a March 2008 statement in VA treatment records that the Veteran was unemployable because of uncontrolled pain in connection with his lumbar spine condition, the Board finds that the preponderance of the evidence is against a finding of unemployability. Employability is a legal determination to be made by the Board in consideration of the Veteran’s education and employment history as well as functional limitations due to service-connected disabilities. In arriving at its employability determination, how much weight to ascribe to the   evidence of record is within the Board’s province as finder of fact. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Accordingly, a TDIU is not warranted prior to September 24, 2014. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fales, Associate Counsel