Citation Nr: 18150938 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 14-12 287 DATE: November 19, 2018 ORDER Entitlement to an initial rating in excess of 30 percent for right knee disability is denied. Entitlement to an initial rating in excess of 30 percent is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities prior to November 22, 2010, is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s left and right knee has been productive of limitation of flexion to 15 degrees or less with full extension, without: ankylosis, recurrent subluxation, lateral instability, or dislocated cartilage semilunar with frequent episodes of locking, pain, or effusions. 2. Prior to November 22, 2010, the Veteran was capable of obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The disabilities criteria for an initial rating in excess of 30 percent for right and left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5256, 5257,5258, 5259, 5260, 5261, 5262, 5263. 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities prior to November 22, 2010, have not been met. 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to July 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2010 rating decision of the Department of Veterans Affairs Regional Office (RO). The Veteran presented sworn testimony in March 2016 before the undersigned Veterans Law Judge (VLJ). In May 2016, the Board remanded this case for further development. Initial rating in excess of 30 percent for left and right knee disabilities Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. §1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded under DCs 5260, 5261, 5257, 5258, 5259 so long as assignments of separate ratings would not result in compensating the Veteran twice for the same knee symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, 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 (1995). 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 (2011). 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. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Left and Right Knees Because the Veteran disagreed with the initial rating assigned, the appeal period before the Board begins on July 29, 2009, the effective date of service connection. Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Board finds the Veteran’s symptoms have been stable throughout the appeal period and therefore staged ratings are not assignable. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran seeks a higher initial rating for her service connected left and right knee chondromalacia patellae and degenerative joint disease. The Veteran currently receives a 30 percent rating for her left and right knee limitation of flexion under DC 5260. The Board notes the Veteran was scheduled for a VA examination to determine the current nature and severity of her knee disabilities in March 2018. The Veteran declined the VA examination without providing a reason. DC 5257 Although the Veteran reported instability throughout the appeal period, the Board finds that a rating under DC 5257 is not warranted because there is inconsistent subjective and objective evidence that the Veteran experienced knee instability. Under 38 C.F.R. § 4.71a, DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Here, the Veteran’s statements about her instability and the resulting gait or limp are inconsistent with the objective evidence of record, e.g., the September 2014 VA examination report, and the Veteran failed to report for a VA examination scheduled following the Board’s remand to investigate this matter. There is also no medical e vi showing that the Veteran has frequent periods of locking of either knee and thus a separate rating under Diagnostic Code 5258 is not warranted. As to limitation of motion, again, the Veteran failed to report for the VA examination ordered following the Board’s May 2016 remand. Under 5260, the Veteran is already receiving the maximum available rating. There are also conflicting findings regarding the extent of her limitation of extension. Although the September 2014 VA examination shows limitation in extension 15 degrees in the right knee and 20 degrees in the left knee, these results are inconsistent with the other evidence of record. Additionally, November 2015 VA treatment records show the Veteran has full range of motion. As such, a rating under 5261 is not warranted. TDIU The Veteran asserts that she is entitled to TDIU prior to November 2010 because she was unable to work in a substantially gainful position. TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional combined service connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 3.340, 3.341, 4.16(a). Prior to November 22, 2010, the effective date of the veteran’s TDIU and depression, her service connected disabilities include chondromalacia, right and left knee rated as 30 percent each. Thus, a TDIU may not be assigned under 38 C.F.R. § 4.16 (a) because regardless of whether she had one service-connected disability rated at 40 percent or more at any point during the appeal period, she did not have a combined 70 percent rating or more during that time. In May 2016, the Board granted entitlement to a TDIU based on the aggregate impact of the Veteran’s right knee, left knee and psychiatric disabilities. Prior to that time, service connection was not in effect for the Veteran’s psychiatric disability. The Board finds the most probative evidence of record shows that the Veteran’s service-connected right knee and left knee disabilities alone do not individually or collectively preclude her from securing and maintaining substantially gainful employment, particularly of a sedentary nature, prior to November 22, 2010. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the 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 Board finds that referral for the assignment of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b) is not warranted. Because the Veteran failed to appear for the VA examination, the Board looks at the evidence of record and there is no indication that the Veteran's knee conditions alone resulted in her inability to secure or maintain substantially gainful employment. As a result, entitlement to a TDIU is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Ijitimehin, Associate Counsel