Citation Nr: 18155020 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 14-44 000 DATE: December 4, 2018 ORDER A separate rating of 20 percent for right knee meniscal injury with frequent episodes of locking, pain, and effusion into the joint is granted throughout the claim period. A rating in excess of 10 percent for right knee limitation of flexion is denied. A total disability rating based on individual unemployability is granted before July 15, 2015 and from April 2, 2018 on. VETERAN’S CONTENTIONS The Veteran’s right knee disability is currently rated as 10 percent disabling for limitation of flexion with painful motion. The Veteran contends that this rating does not accurately reflect the severity of his disability. Specifically, he asserts that his knee causes him frequent pain and instability, to the extent that it gives out and causes him to stumble. The Veteran is also seeking a total disability rating based on individual unemployability (TDIU). The Veteran contends that his service-connected disabilities have prevented him from securing and maintaining a substantially gainful occupation ever since his discharge from the Navy. FINDINGS OF FACT 1. The Veteran’s right knee disability has manifested in a meniscal injury with frequent episodes of locking, pain, and effusion into the joint throughout the claim period. See VA Examinations dated February 2013, January 2017; VA Treatment Records dated May 2013, June 2013. 2. Throughout the claim period, the Veteran’s right knee limitation of flexion has manifested in no more than flexion limited to 115 degrees, with painful motion. See VA Examinations dated February 2013, January 2017. 3. Before July 15, 2015 and from April 2, 2018 on, the Veteran has been unable to secure or maintain a substantially gainful occupation as a result of his service-connected disabilities. See, e.g., April 2008 VA Treatment Record (Veteran reported that he could not do physical labor); July 2012 Administrative Decision (finding the Veteran’s psychiatric disabilities rendered him unemployable); VA Examinations dated January 2017, April 2018 (noting that the Veteran’s knee and back disabilities prevented him from doing physical labor); April 2018 VA Treatment Record (Veteran reported he was fired for reasons related to his psychiatric disabilities). CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for meniscal injury with frequent episodes of locking, pain, and effusion into the joint are met throughout the claim period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5258. 2. The criteria for an increased 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. 3. The criteria for a total disability rating based on individual unemployability have been met before June 15, 2015, and from April 2, 2018 on. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from December 1994 to April 2006. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. 1. Entitlement to a Separate Rating for a Right Knee Meniscal Injury A rating of 20 percent is warranted for disabilities of the knee under diagnostic code (DC) 5258, where there is evidence of a meniscal injury (“dislocated semilunar cartilage”) with frequent episodes of locking, pain, and effusion into the joint. At a February 2013 VA examination, the Veteran reported past treatment for a meniscal condition, and the examiner noted an August 2011 MRI with a finding of a small meniscal tear. Subsequently, the Veteran’s treatment records note “small effusion” into the right knee, and reflect complaints of pain and instability. See VA Treatment Records dated May 2013, June 2013. At a January 2017 VA examination, the Veteran reported that his knee occasionally gave out and caused him to stumble. Based on these symptoms and the Veteran’s history of meniscal injury, a separate rating of 20 percent is warranted. The Veteran has submitted argument that an increased rating is warranted for right knee instability under DC 5257. However, in light of the grant of a 20 percent rating made herein, based in part on the Veteran’s symptoms of right knee instability, the rule against pyramiding precludes an additional award of compensation based on the same symptoms. See 38 C.F.R. § 4.14. The Veteran argues further that his right knee instability warrants a rating higher than the ratings available under DC 5257 (30 percent maximum), and so should be rated by analogy under DC 5262, which allows for a maximum rating of 40 percent. However, there is no evidence, either subjective or objective, to support the contention that the Veteran’s right knee instability has been more than slight at any point throughout the claim period. No examiner noted any ligament laxity or objective instability, and the Veteran himself reported as most occasional stumbling and giving out of the knee. In a June 2014 statement, the Veteran argued that the Board should follow in this case a past Board decision in which it found that a prescription to use a knee brace was de facto proof of instability and warranted the highest available rating. Here, the Veteran has been issued a knee brace and a cane. See November 2006 VA Treatment Record. However, Board decisions are not precedential, and the Board has no obligation to follow its own prior determinations. Moreover, even if the use of a knee brace and a cane is evidence of instability, such use does not clearly indicate the severity of the instability. In contrast, the remainder of the relevant evidence, outlined above, speaks directly to the severity of the Veteran’s right knee instability, and indicates that it has been no more than slight throughout the claim period. Therefore, a rating in excess of 20 percent under DC 5257 is not warranted. 2. Entitlement to an Increased Rating for Right Knee Limitation of Flexion Under DC 5260, a rating in excess of 10 percent for limitation of flexion of the knee requires flexion limited to 30 degrees. Because there is no evidence of flexion limited to more than 115 degrees throughout the claim period, a rating in excess of 10 percent is not warranted. The Board has also considered whether increased ratings may be granted under other applicable codes. However, there is no evidence throughout the claim period of right knee ankylosis, recurrent subluxation, limitation of extension, or impairment of the tibia and fibula. See DCs 5256, 5257, 5261, 5262; see also VA Examinations dated February 2013, January 2017. Therefore, increased ratings are not warranted under these codes. To the extent that the VA examinations cited above failed to test passive range of motion and range of motion in non-weight-bearing conditions, the Board finds that the examinations nevertheless are adequate for VA rating purposes. Passive range of motion is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active range of motion because the integrity of the soft tissue structures does not dictate the limits of movement. Comparisons between passive range of motion and active range of motion provide information about the amount of motion permitted by the associated joint structures (passive range of motion) relative to the individual’s ability to produce motion at a joint (active range of motion). CYNTHIA NORKIN & D. JOYCE WHITE, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 8-9 (2016). Testing the joint under weight-bearing conditions involves movement of the body against gravity. J. Randy Jinkins, et. al., Upright, Weight-bearing, Dynamic-kinetic Magnetic Resonance Imaging of the Spine: Initial Results, 15 J. Eur. Radiol. 1815-25 (2005). When evaluating range of motion, it is preferable to test in weight-bearing conditions because testing in non-weight-bearing conditions underestimates the degree of pathology present. Id. at 1823. Because there is no indication that the structural integrity of the Veteran’s right knee is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board has therefore evaluated the Veteran’s range of motion using the available findings of active range of motion. 3. Entitlement to a 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 had a combined disability rating of 70 percent since April 14, 2006, with a 50 percent rating for obstructive sleep apnea throughout that time, thus meeting the schedular rating threshold. 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 has been unemployed for most of the claim period, with a period of full-time employment from June 2015 to April 2018, during which the Veteran held three separate positions. Before and after this period, the evidence clearly indicates that the Veteran’s physical and psychiatric disabilities prevented him from securing and maintaining a substantially gainful occupation. In statements made to VA clinicians in April 2008 and January 2010, and to a VA examiner in April 2012, the Veteran reported that he was unable to get a job due to his physical and psychiatric disabilities, specifically his service-connected right knee condition, depression, and anxiety. The RO confirmed the Veteran’s report in a July 2012 administrative decision denying entry into a vocational rehabilitation program. The decision stated: “your disabilities make it unreasonable to expect that you could use our program to get and keep competitive employment.” In April 2018, the Veteran was terminated from his position as a peer support specialist with a behavioral health facility. He reported that he had been let go for reasons related to his psychiatric disabilities. See VA Treatment Records dated March and April 2018 (Veteran reported worsening anxiety and losing control of emotions at work, and that he was fired after making a threatening comment about a coworker). VA examinations from January 2017 and April 2018 indicate that the Veteran’s service-connected conditions continued to prevent him from performing physical labor during this time. Therefore, because the Veteran’s service-connected disabilities prevented him from securing or maintaining a substantially gainful occupation before June 15, 2015 and from April 2, 2018 on, a TDIU is warranted for those periods. For the period from June 15, 2015 to April 1, 2018, the Veteran was employed full time, first as a medical support assistant, and then in two positions as a peer support specialist, with a gap of three months between them. See June 2018 TDIU Claim; August 2018 Statement of Veteran’s Wife. Because the Veteran was employed in full time positions during this period, the Board cannot find that he was unable to secure and maintain substantially gainful employment. Therefore a TDIU is not warranted for this period. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel