Citation Nr: 18159992 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 14-06 136 DATE: December 20, 2018 ORDER A rating in excess of 20 percent for right knee medial and lateral instability is denied. A rating in excess of 40 percent for right knee limitation of extension is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran’s right knee has been manifested by no more than moderate medial and lateral instability. 2. There is no objective evidence of the Veteran’s right knee flexion limited to 45 degrees or less; extension limited to 45 degrees or more, recurrent subluxation or objective evidence of severe lateral instability, dislocated semilunar cartilage with frequent locking, pain, or effusion into the joint, impairment of the tibia or fibula; or ankylosis. Veteran’s right knee degenerative joint disease has been manifested throughout this appeal by extension limited to no less than 30 degrees. 3. The Veteran’s service-connected disabilities do not render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for instability of the service-connected right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 2. The criteria for a disability rating in excess of 40 percent for limitation of extension caused by a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 3. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1976 to March 1979. The matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. That rating decision continued the 40 percent rating for the Veteran’s right knee degenerative joint disease based on limitation of extension and the 20 percent rating for residuals of repair of right knee with some medial and lateral instability. The Board previously remanded this case in September 2015 to obtain the Veteran’s Social Security Administration (SSA) records and for a VA examination. The Veteran’s SSA records were obtained by the Agency of Original Jurisdiction (AOJ) in September 2015, and updated VA treatment records have since been associated with the claims file. A VA examination was held in October 2015. The matter has now returned to the Board for appellate review. Under these circumstances, the Board finds that there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s Contentions The Veteran claims that the pain in his right knee is worsening and that he can straighten it out to a certain extent but that it hurts. The Veteran is also seeking TDIU from August 2011. Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155, 38 C.F.R. Part 4. When a question arises as to which of two ratings shall apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). VA regulations also instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995). In specific regard to rating disabilities of the knee, precedent opinions of VA’s General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code (DC) 5257) and one rating for arthritis with limitation of motion (DC 5003 and 5010). VAOPGCREC 9-98 (63 Fed. Reg. 56,704 (1998) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (Leg, limitation of flexion) and DC 5261 (leg, limitation of extension) may be assigned for disability for the same joint. VAOPGCPREC 9-2004 (69 Fed. Reg. 59988 (2004)). Further, in Lyles v. Shulkin, the Court of Appeals for Veterans Claims (CAVC) recently held that evaluation of a knee disability under the diagnostic codes for recurrent subluxation or instability; limitation of extension; or limitation of flexion does not preclude as a matter of law a separate evaluation of a meniscal disability under DC 5258 or 5259, the diagnostic codes for removal or dislocation of semilunar cartilage. 29 Vet. App. 107, 115-16 (2017). Accordingly, considering the above, when evaluating the Veteran’s right knee disability, the Board may assign sperate ratings for: (1) recurrent subluxation or lateral instability; (2) limitation of flexion; (3) limitation of extension; and (4) symptoms associated with the dislocation or removal of semilunar cartilage. According to DC 5257, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee, a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. The terms “slight,” “moderate” and “severe” as set forth in Diagnostic Code 5257 are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dipositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a non-compensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a non-compensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Currently, the Veteran is in receipt of a 20 percent rating for his service-connected right knee disability under 38 C.F.R. §4.71a, Diagnostic Code 5257 for lateral instability. The Veteran is also in receipt of a 40 percent rating under 38 C.F.R. §4.71a, Diagnostic Code 5261 for limitation of extension. Turning to the evidence, as noted, the Veteran was afforded a VA examination in October 2015. The examiner noted the Veteran’s history as including service connection for right knee instability with degenerative arthritis and a non-service-connected below the right knee amputation (BKA) disability. The Veteran related frequent swelling of the joint resulting in inability to wear his prosthetic properly. The Veteran also related pain to the point of the inability to bear any weight, stand for a period of time or walk with a cane. The Veteran reported flare-ups when using his prosthetic, causing worsening pain and swelling, requiring him to use a wheelchair instead of his prosthetic. Flexion was limited to 60 degrees and extension was measured as 60 to 30 degrees. Pain, weakness and lack of endurance were listed as factors causing functional loss of the right knee. Moderate lateral instability was indicated, but the examiner was unable to perform the required testing because of the BKA. An August 2014 progress note from the Veteran’s physiatrist noted passive range of motion for the right knee as -20/0 extension and 120/120 flexion. A June 2013 physiatry consult note reflected 15-20 degrees flexion contracture and severe right knee DJD. The treating physiatrist described the Veteran as significantly and severely impaired in his right knee functions. During an October 2012 VA examination, the Veteran was noted as having flexion to 125 degrees and extension ending at 10 degrees in the right knee without any objective evidence of painful motion. Medial-lateral instability was tested as normal. An August 2011 VA examination revealed flexion of the right knee to 80 and extension ending at 30. The examiner was unable to test medial-lateral instability. At a March 2016 hearing before a Decision Review officer (DRO), the Veteran complained of pain and instability in his right knee and stated that it did not properly extend. A further VA examination was requested in May 2018, but the Veteran was hospitalized at the time of the examination. The Veteran failed to appear at the rescheduled examination in August 2018. VA treatment records reflect repeated complaints of pain by the Veteran related to his right knee. After considering the evidence of record, the Board finds that the evidence does not support an increased rating in excess of 40 percent for limitation of extension. The evidence of record does not reveal limitation of extension of the leg to 45 degrees so as to warrant a 50 percent rating. Diagnostic Code 5261. Further, a separate rating under Diagnostic Code 5260 is not warranted as neither painful flexion nor flexion limited to 45 degrees is shown. The Board also finds that the Veteran is not entitled to an increased rating of 30 percent for his left knee instability. As the record evidence is devoid of any probative evidence that the Veteran experienced recurrent subluxation, the discussion under Diagnostic Code 5257 will be focused on instability in the Veteran’s right knee. As noted, a 30 percent rating requires severe lateral instability. Diagnostic Code 5257. The most recent VA examination report indicates moderate instability. As the examination was completed by a medical professional who offered his conclusions based on a physical examination, review of the record and interview of the Veteran, the Board has no reason to contradict the examiner’s conclusion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Veteran does not describe severe instability. As noted, VA treatment records reflect complaints of pain and swelling and the Veteran related that those conditions make it difficult to use his prothesis. At the March 2016 hearing, the Veteran testified that he fell down “one time” while walking because of “weakness” in both legs. The Veteran is competent to report that he experiences weakness in his right knee. See Layno v. Brown, 6 Vet App. 465, 469 (1994); see also English v. Wilkie, No. 17-2083, 2018 U.S. App. Vet. Claims LEXIS 1464 (Nov. 1, 2018) (suggesting that lay evidence of knee instability is generally competent). However, based on the medical and lay evidence of record, the Board finds that no more than moderate instability is shown. Accordingly, the claim for entitlement to a rating in excess of 20 percent for the Veteran’s right knee is denied. Throughout the entirety of the appeal period, the evidence does not reflect that the veteran dislocated or had semilunar cartilage removed from the right knee. Accordingly, Diagnostic Codes 5258 and 5259 are inapplicable. The Board has also considered whether separate ratings could be assigned for the Veteran’s right knee disability under any other applicable diagnostic codes, but the evidence of record does not support awarding separate ratings based on ankylosis, impairment of the tibia and fibula or genu recurvatum, as the foregoing conditions and symptoms were not objectively documented during examinations and treatment and were not described by the Veteran during the claim period. 38 C.F.R. §4.71a, Diagnostic Codes 5003, 5356, 5359, 5262, 5263. For the foregoing reasons, separate or higher ratings are not warranted for the Veteran’s right knee disability. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107; see Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU The Veteran seeks a TDIU, claiming that he is unemployable due to his service-connected right knee disability. Following a review of the record, the Board finds that a TDIU is not warranted. The Board first acknowledges that it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation because of service-connected disabilities shall be rated totally disabled. 38 C.F.R. §4.16. A finding of total disability is appropriate, “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.” 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned if 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, it is ratable at 60 percent or more, and if there are two or more such disabilities, at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. §4.16(a). For the purpose of one 60 percent disability or one 40 percent disability, the following will be considered one disability: (1) disabilities of one or both upper or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. §4.16(a). Currently, the Veteran does not meet the schedular requirements for TDIU as he does not have a service-connected disability rated at least 60 percent or two service-connected disabilities where one is rated at least 40 percent and the combined rating is 70 percent or more. Accordingly, a TDIU is not warranted and the appeal is denied. Referral for consideration of TDIU on an extraschedular basis is also not warranted, as the evidence does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected right knee disability. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel