Citation Nr: 18106941 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 12-30 228 DATE: June 1, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee is denied. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee is denied. Entitlement to a separate 10 percent rating for right knee meniscus repair residuals is granted. Entitlement to a separate 10 percent rating for left knee meniscus repair residuals is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. At all times during the pendency of the appeal, the evidence of record shows that the Veteran’s DJD of the right knee is manifested by pain and crepitation in the knee joint, but has not more nearly approximated limitation of flexion to 45 degrees, limitation of extension 10 degrees, recurrent subluxation, lateral instability, or ankylosis. 2. At all times during the pendency of the appeal, the evidence of record shows that the Veteran’s DJD of the left knee is manifested by pain and crepitation in the knee joint, but has not more nearly approximated limitation of flexion to 45 degrees, limitation of extension 10 degrees, recurrent subluxation, lateral instability or ankylosis. 3. The Veteran has a symptomatic left knee medial meniscus injury, status post arthroscopy with meniscus and cartilage operation, which is associated with his other service-connected left knee disabilities. 4. The Veteran has a symptomatic right knee medial meniscus injury, status post arthroscopy with meniscus and cartilage operation, which is associated with his other service-connected right knee disabilities. 5. The evidence of record does not persuasively show that the Veteran’s service-connected disabilities preclude him from following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for right knee DJD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017). 2. The criteria for an increased rating in excess of 10 percent for left knee DJD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017). 3. The criteria are met for a separate 10 percent disability rating, but no higher, for a left knee medial meniscus injury. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2017); VAOPGCPREC 9-98 (August 14, 1998). 4. The criteria are met for a separate 10 percent disability rating, but no higher, for a right knee medial meniscus injury. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2017); VAOPGCPREC 9-98 (August 14, 1998). 5. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1971 to July 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from December 2010 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee, and in excess of 10 percent for DJD of the left knee. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran is currently in receipt of separate 10 percent ratings for each knee under Diagnostic Code 5260. Diagnostic Codes 5260 and 5261 pertain to limitation of knee motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. In this regard, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. A limitation of leg flexion allows for a 10 percent evaluation when it is limited to 45 degrees, and a 20 percent evaluation when flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A limitation of leg extension is assigned a 10 percent evaluation when it is limited to 10 degrees, and a 20 percent evaluation when extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings for knee disabilities may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. Under Diagnostic Code 5259, a 10 percent rating can be assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. Under Diagnostic Code 5258, a 20 percent evaluation can be assigned for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Id. A veteran may also receive a separate evaluation for recurrent subluxation or lateral instability under Diagnostic Code 5257, which can be rated as slight (10 percent), moderate (20 percent) or severe (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. Evaluations for knee impairment can also be assigned due to ankylosis, tibia and fibula impairment, or genu recurvatum, but as the Veteran has not at any time been found to have ankylosis, tibia and fibula impairment, or genu recurvatum, these diagnostic codes are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, it was held that when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be “‘portray[ed]’ (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 206. Private treatment records reveal a history of treatment for the bilateral knees. In April 2015, it was noted he had bilateral knee medial meniscus tears and chondromalacia, and he elected to undergo a right knee arthroscopy, meniscus and cartilage surgery. At a July 2010 examination, he reported intermittent pain with stiffness. There was no evidence of deformity, giving way, instability, weakness, incoordination, dislocation or subluxation, effusions, locking episodes, or inflammation. He did have weakness, and an antalgic gait. He was employed as a housekeeping supervisor, and had reportedly lost 3 weeks of work in the prior year as a result of ankylosing spondylitis. There were no identified effects his knees had on daily activities. In May 2012, the Veteran underwent an examination. He was limited to walking about 15 minutes at a time before needing to rest due to knee pain. Range of motion testing revealed right and left knee flexion to 120 degrees with pain at 90, and extension to 0 degrees with no evidence of pain. Following repetitive use testing, the Veteran did not have any additional limitation in range of motion of the knee. He had no functional loss or functional impairment of the knee. He did not have tenderness or pain to palpation of the joint line or soft tissues of the knee. Joint stability testing was normal, and there was no evidence of subluxation or dislocation. He reported having shin splints, but had not had any symptoms for several years. There were no meniscal conditions or symptoms. The Veteran’s knee condition had no impact on his ability to work, and the examiner opined that the Veteran was disabled as a result of his ankylosing spondylitis with back and hip pain. At an April 2013, visit, the Veteran reported his right and left knee giving way, with intermittent mild to moderate pain, that he treats with pain medication. In October 2014, the Veteran underwent an examination. He reported receiving steroid injections, that helped his left knee, but he was still having problems with the right knee. He stated his left knee was painful, and with regard to the right knee it was painful, swells and gave out. He reported that when he experiences a flare-up he must sit down, and use an ice pack. Range of motion testing revealed flexion to 90 degrees, and extension to 0 degrees, with pain throughout. He had no additionally limitation in range of motion of the knees following repetitive use testing. Joint stability testing was normal bilaterally, and there was no evidence of subluxation or dislocation. He reported frequent episodes of locking, joint pain, and effusion, and a meniscal tear. The Veteran’s knee conditions limit his ability to perform occupations requiring repetitive climbing, prolonged walking or kneeling. VAMC treatment records reveal that in 2015, the Veteran had a right knee partial medial and lateral meniscectomy, and synovectomy, and left knee arthroscopy, meniscus and cartilage surgery, to treat his bilateral knee meniscus tears. At a December 2017 VA contract examination, the Veteran reported flare ups of knee pain that make daily activities difficult. Range of motion testing revealed flexion to 100 degrees, and extension to 0 degrees, with pain. The range of motion contributes to functional loss, impeding mobility and instrumental activities of daily living. There was no evidence of pain with weight bearing. There was evidence of pain and tenderness on palpation at the anterior and medial joint line. There was objective evidence of crepitus. He was not able to perform repetitive use testing with three repetitions, because of pain. He was not examined immediately after repetitive use over time, and the examiner indicated the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, lack of endurance, and incoordination significantly limit functional ability with repeated use over a period time. He had disturbance of locomotion, interference with sitting and standing. Muscle strength was normal, with no evidence of atrophy. The Veteran does not suffer from ankylosis. On joint instability testing, there was no evidence of subluxation, instability or effusions. Regarding a meniscus condition, he reported suffering from right and left side episodes of locking, and joint pain, and there was objective evidence of crepitus. In 2015, he had an arthroscopy of the right knee and the left knee. The examiner noted the Veteran’s bilateral meniscectomies from 2015, and the residuals of frequent joint locking, and joint pain. He used a brace and cane on a regular basis to aid in ambulation and joint support. The functional impact on his employment, was such that his bilateral knee arthralgia impedes his ability for any prolonged ambulation or standing. Based on the above, the Board finds that there is no basis to grant an increased rating based on limitation of flexion. Both knees have generally limitations in range of motion, with the lowest flexion being to 90 degrees with pain, however, range of motion was still in excess of 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. As to limited extension, the evidence shows that both knees have consistently exhibited extension to zero degrees and have not been additionally limited due to pain, to include in non-weight bearing and passive motion. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Regarding instability, the evidence shows that the both knees have consistently been shown to not exhibit instability as testing in this regard has been negative. Although the Veteran reported occasionally wearing a knee brace, there is no indication that this was required in order to stabilize his knee joint, nor has he claimed that it is for such purpose. As such, there is no basis to assign an increased rating based on instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As to meniscal conditions, the Board acknowledges that the Veteran had bilateral knee meniscal tears and bilateral arthroscopic knee surgeries and that the Veteran reported joint pain and locking. At the 2017 examination, he reported suffering from right and left knee episodes of locking and joint pain, and there was objective evidence of crepitus. In 2015, he had bilateral knee arthroscopies with meniscal repairs. The examiner noted the Veteran’s bilateral meniscectomies from 2015, and the residuals of frequent joint locking, and joint pain. He used a brace and cane on a regular basis to aid in ambulation and joint support. Diagnostic Code 5259 assigns a 10 percent rating for symptomatic removal of semilunar cartilage. No other rating is available under this code section. As stated above, the Veteran had bilateral knee meniscus tears. In 2015, he underwent bilateral arthroscopies, and meniscus and cartilage surgeries. Resolving any doubt in his favor, a separate 10 percent rating under Diagnostic Code 5259 for a left knee medial meniscus injury, and a 10 percent rating for a right knee medial meniscus injury, status post arthroscopy and meniscus surgery, is warranted. 38 C.F.R. § 4.3. The Veteran’s locking and joint line tenderness over the medial part of his left knee is considered to be distinct and separate symptomatology separately ratable from his left and right knee DJD. The evidence of record shows that in 2015, he had a meniscus operation, associated with his in-service left knee and right knee conditions. However, the 10 percent rating assigned here is the maximum rating available under Diagnostic Code 5259. It follows that by law, the Veteran cannot be entitled to a higher rating under this diagnostic code. There has been no evidence however, that either knee exhibited dislocated, semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint. As such, a rating under Diagnostic Code 5258 is not warranted. The Board acknowledges that the evidence, including the Veteran’s lay statements indicate that he has chronic knee pain and crepitation, and has considered 38 C.F.R. § 4.59 regarding painful motion. Under 38 C.F.R. § 4.59, with any form of arthritis, actually painful joints are entitled to at least the minimum compensable rating. See also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) (“Under 38 C.F.R. § 4.59, the trigger for a minimum disability rating is an ‘actually painful, unstable, or malaligned joint [].’“). In this case, however, the Veteran has already been assigned at least the minimum compensable rating, 10 percent, for each knee for the entire period on appeal. See Petitti, 27 Vet. App. at 425. The 10 percent evaluations already take into account the Veteran’s limitation of motion hampered by pain or crepitation, repetitive motion, and flare ups, as these symptoms were evaluated on examination to the extent feasible. Furthermore, pain, by itself, does not constitute functional loss. Rather, there must be actual limitation of motion that is caused by pain. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Board has considered the Veteran’s lay statements regarding the functional impact of his bilateral knee disabilities, including avoiding more active endeavors than he would like. The Veteran is competent to report his own observations with regard to the severity of his disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). His statements are consistent with the ratings assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran’s medical records. To the extent that the Veteran argues his symptomatology is more severe than shown on evaluation, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions. Based on the foregoing, the Veteran is entitled to a separate 10 percent rating for each knee under DC 5259. The preponderance of the evidence is against an increased evaluation under DC 5260 or an additional separate rating under any other Diagnostic Code. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against assignment of any other higher ratings, it is not applicable. 38 U.S.C. § 5107. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from 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. While the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant’s nonservice-connected disabilities nor advancing age may be considered. The Veteran is service connected for: DJD of the right knee with a 10 percent rating, DJD of the left knee with a 10 percent rating, left knee medial meniscus injury with a 10 percent rating, right knee medial meniscus injury with a 10 percent rating, bilateral pes planus with a 10 percent rating, left foot hallux valgus with a 10 percent rating, and right foot hallux valgus with a 10 percent rating. Here, using the combined rating table, and a bilateral factor of 5.2 percent, the Veteran’s combined rating is 60 percent. For purposes of determining if the Veteran meets the schedular requirements for TDIU, the Veteran’s disabilities will be considered one disability rated as 60 percent. Accordingly, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU. SSA records reveal the Veteran has not engaged in substantial gainful activity since September 2010. He was granted SSA disability effective September 2010, with the primary diagnosis being ankylosing spondylitis-lumbar, and the secondary diagnosis being inflammatory arthritis of the hips and knees. In his October 2012 application for TDIU, the Veteran stated that he last worked as a housekeeping supervisor in 2011, at Austin Independent School District. He indicated arthritis prevents him from following any substantially gainful occupation. In an October 2014 statement, the Veteran stated that he suffers from ankylosing spondylitis that causes severe pain and that he ceased working in 2011 due to the ankylosing spondylitis. In an April 2018 statement, the Veteran reported that his rheumatoid, psoriatic and ankylosing spondylitis arthritis impact him. He stated he had to resign from his job, because he could not perform his duties due to chronic pain, narcotics and fatigue. As stated above, on examination in July 2010 the Veteran was still working as a housekeeping supervisor. At the May 2012 examination, he indicated he stopped working, as a result of his ankylosing spondylitis with back and hip pain. The October 2014 examiner noted that the Veteran’s knee conditions limited his ability to perform occupations requiring repetitive climbing, walking or kneeling. At the December 2017 VA joints examination, the examiner acknowledged the Veteran’s knee conditions had effects on daily activities. The functional impact on his employment, was such that his bilateral knee arthralgia impedes his ability for any prolonged ambulation or standing. Further, there has been no indication that the Veteran’s pes planus has negatively impacted his ability to obtain employment. In sum, based on the evidence of record, and the Veteran’s statements, it seems the Veteran’s non-service connected ankylosing spondylitis has impacted his ability to obtain employment. In the Veteran’s own words, he has asserted he ceased working due to ankylosing spondylitis. There are no other pieces of medical evidence indicating the Veteran was unable to obtain employment by reason of his service-connected disabilities. (Continued on the next page)   In these circumstances, the evidence does not show that the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of service-connected disabilities, either individually or in the aggregate. Rather, it appears that his difficulty was attributable to his non-service connected impairment, primarily his back condition. In reaching the conclusion to deny this claim, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, entitlement to a TDIU must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel