Citation Nr: 18112698 Decision Date: 06/20/18 Archive Date: 06/20/18 DOCKET NO. 16-42 385 DATE: June 20, 2018 ORDER Entitlement to an initial rating in excess of 20 percent on a schedular basis for a right knee meniscal tear is denied. Entitlement to a separate 10 percent rating for right knee instability is granted. REMANDED Entitlement to a rating in excess of 20 percent on an extraschedular basis for a right knee meniscal tear is remanded. Entitlement to a total disability rating due to individual unemployability is remanded. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran’s right knee meniscal tear was manifested by dislocated semilunar cartilage with frequent episodes of “locking,” pain and popping as well as full extension and flexion limited to no more than 85 degrees and no ankylosis. 2. During the entire period on appeal, the Veteran’s right knee disability was manifested by slight instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for a right knee meniscal tear have not been met. 38 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.14, 4.40, 4.71a, Diagnostic Codes 5010, 5258, 5260, 5261. 2. The criteria for a separate disability rating of 10 percent for slight right knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.14, 4.40, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1958 to February 1961. He testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2018, during which the Veteran waived VA Regional Office review of new evidence. The TDIU claim has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. See also Hurd v. West, 13 Vet. App. 449 (2000); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009); see also Mayhue v. Shinseki, 24 Vet. App. 273 (2011). Specifically, the Veteran claimed during the April 2018 hearing that he retired in 1997 from his work as a telephone technician due to the symptoms of his right knee disability, which made it difficult to complete the physical requirements of the job. He also submitted a vocational assessment from a P.C. dated in April 2018 in which P.C., who identified himself as a certified vocational evaluator, opined that it was highly likely that the Veteran’s right knee condition precluded his ability to secure and maintain substantially gainful employment. The issue is addressed separately in the REMAND section below. Entitlement to an initial rating in excess of 20 percent for a right knee condition The Veteran seeks a higher rating for his right knee condition, characterized as degenerative joint disease and a tear of the medial lateral meniscus, and evaluated as 20 percent disabling. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. The 20 percent evaluation was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5258. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that the symptomatology of the right knee condition is manifested as degenerative arthritis pursuant to Diagnostic Code 5010, while Diagnostic Code 5258 is a residual condition of the arthritis that corresponds to dislocated semilunar cartilage with frequent episodes of “locking”, pain, and effusion into the joint. The Board will consider additional diagnostic codes pertinent to the evaluation of knee disabilities in order to determine the highest possible evaluation for the bilateral knee disabilities during the entire period of the appeal. However, in considering the applicability of those diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5259 (symptomatic removal of semilunar cartilage) and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran experiences these conditions. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5263. Under Diagnostic Code 5257, recurrent subluxation or lateral instability, a 10 percent rating is assigned when the impairment is slight, while a 20 percent rating is assigned for moderate impairment and a 30 percent rating is for severe impairment. Under Diagnostic Code 5258, a single 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain and effusion into the joint. Degenerative arthritis is rated under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Limitation of motion of the knee is rated under Diagnostic Code 5260, for limitation of flexion, and 5261, for limitation of extension. Under Diagnostic Code 5260, limitation of flexion of the leg, a noncompensable rating is assigned when flexion is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the leg, a noncompensable rating is assigned when extension is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71a. For VA purposes, “normal” extension and flexion of the knee is from zero to 140 degrees, and references to normal motion below indicate that the Veteran, in fact, had motion from zero to 140 degrees. 38 C.F.R. § 4.71a, Plate II. The Board notes that separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. The severity of the Veteran’s right knee condition was first evaluated in a November 2014 disability benefits questionnaire. He reported daily right knee pain, with frequent popping and giving way as well as occasional locking and swelling. He endorsed experiencing flare-ups of increased pain every two to three years precipitated by physical activity such as standing, walking, and repetitive bending of the knee joint. He also stated that he had received physical therapy in the past and had his right knee aspirated. Range of motion testing revealed flexion limited to 125 degrees of the right knee, with no limitation of extension. There was no additional limitation of motion following repetitive use, although the examiner did note that the Veteran experienced pain beginning around 90 degrees of flexion. Functional limitations were characterized as less movement, pain, disturbance of locomotion, and interference with sitting, standing and weight-bearing. Slight medial-lateral instability was noted in the right knee. Furthermore, the examiner reported that the Veteran experienced frequent episodes of right knee locking and effusion associated with the right knee meniscal tear. In conclusion, it was the examiner’s impression that the right knee condition resulted in the Veteran having difficulty standing or walking for a prolonged period of time, with particular difficulty walking up stairs. In a November 2014 addendum opinion, the VA examiner agreed with the contention that it was not feasible to opine as to the additional functional limitation stemming from the Veteran’s flare-ups due to the fact that do so would either be a resort to speculation (if the Veteran was not experiencing a flare-up in the presence of the examiner) or would be an inappropriate overestimation of symptomatology (if the Veteran was experiencing a flare-up, as the effects of that flare-up would have already been reported on the examination report). Accordingly, the examiner declined to opine as to any additional functional limitations attributable to the flare-ups reported by the Veteran. The Veteran was afforded a VA examination in February 2017 to again evaluate the severity of the right knee condition. He reported the same symptoms of pain and knee locking, and also detailed a fall he suffered a few years prior that he attributed to his knee giving way. A physical examination revealed that the Veteran had to use a cane because his right knee would lock up. The examiner also reported that he had an antalgic gait. Range of motion testing revealed flexion limited to 85 degrees on the right knee, with no limitation of extension. There was no additional limitation of motion following repetitive use, although the examiner noted pain with weight-bearing as well as moderate tenderness around the patella and crepitus. Functional limitations were characterized as less movement, disturbance of locomotion, and interference with sitting and standing. No instability was noted in the right knee. Furthermore, the examiner reported that the Veteran experienced frequent episodes of right knee locking associated with the right knee meniscal tear. In conclusion, it was the examiner’s impression that the right knee condition resulted in the Veteran having difficulty standing or walking for a prolonged period of time. In a March 2017 addendum opinion the VA examiner added that the pain noted on the February 2017 examination was present on both active and passive range of motion. During the April 2018 hearing, the Veteran asserted that he experienced considerable pain when he climbed stairs and that his right knee condition hindered his ability to stand or walk for a prolonged period of time. Furthermore, he attested that since he had an MRI of his right knee in September 2008 he was told by his treating physician to avoid weightbearing exercise and standing or walking for more than 15 minutes at a time. He contended that his knee hurt every morning after waking and that he rubbed the right knee with a topical cream that alleviated the pain. Regarding his meniscal symptomatology, he endorsed experiencing frequent popping and locking, and attributed the two falls he had in recent years to his right knee locking up. Since experiencing those falls he began using a cane to help him stay upright when his right knee locked up. Finally, he agreed that his knee hurt even if he was not moving it. He evaluated his pain as a 6 out of 10. Upon consideration of the evidence, the Board does not find that the Veteran’s right knee disability warrants a rating in excess of 20 percent on a schedular basis. At no point during the pendency of the appeal did the Veteran exhibit a loss of flexion or extension that would warrant a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Although the Veteran has consistently reported experiencing frequent episodes of popping and locking in his right knee that have purportedly caused him to fall on occasion, the 20 percent rating now assigned for dislocation of the semilunar cartilage during the entire period of the appeal is the highest possible rating for this particular symptomatology. 38 C.F.R. § 4.71a, Diagnostic Codes 5258. The Board would point out also that there is no evidence of ankylosis (Diagnostic Code 5256) or impairment of the tibia or fibula (Diagnostic Code 5262). However, the Board does find that, consistent with the slight instability found on the November 2014 disability benefits questionnaire, a separate 10 percent rating is warranted for the right knee for the entire pendency of the appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5257. While the subsequent February 2017 examination did not reveal any instability, in light of the Veteran’s continued subjective complaints of instability (e.g., his hearing testimony) as well as his history of falls associated with his right knee condition, and in keeping with the doctrine of benefit of the doubt, the Board finds that the evidence is at least in equipoise as to whether the Veteran has slight instability in his right knee and thus warrants a separate 10 percent rating for the pendency of this appeal. The Board is aware that the Veteran has consistently reported experiencing chronic knee pain and symptoms of locking and popping in his right knee. As noted by the VA examiners who have evaluated the Veteran during the pendency of the appeal, the Veteran has some functional loss due to his bilateral knee disabilities in the form of pain, disturbance of locomotion, and interference with sitting and standing. Acknowledging this, there is no compensable loss of range of motion, and the instability noted on the November 2014 disability benefits questionnaire is now being compensated for with a separate 10 percent disability evaluation. The Veteran has met the criteria for a 20 percent rating on the basis of the loss of semilunar cartilage, and the symptoms of locking, stiffness, popping and pain are encompassed in that 20 percent rating. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. As for the instability symptoms, they are properly reflected by the separate 10 percent rating. Therefore, the Board finds that the disability picture for the right knee disability most closely approximates the currently assigned 20 percent rating, with the separate 10 percent rating encompassing the right knee instability. Neither the Veteran nor his representative has raised any other allegation during the entire period of the appeal other than entitlement to an extraschedular rating, addressed below. Moreover, no other issues have been reasonably raised by the record, other than the separate rating for right knee instability and entitlement to a TDIU. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to TDIU is remanded. The Veteran has asserted that his right knee meniscal tear renders him incapable of securing and maintaining substantially gainful employment, with the implication that he retired early in 1997 due to his inability to perform the physical requirements of his position as a telephone technician. In support of this assertion, he submitted an April 2018 vocational assessment prepared by a P.C. in which it was determined that it was highly likely that the right knee disability precluded the Veteran from securing and maintaining substantially gainful employment. The Board finds that the Veteran’s contentions as well as the April 2018 vocational assessment raise a TDIU claim, and the Veteran must be provided with specific notice and adjudication concerning his TDIU claim on remand. Entitlement to a rating in excess of 20 percent on an extraschedular basis for a right knee meniscal tear is remanded. The Veteran has specifically asserted that he is entitled to a higher initial rating for his right knee condition on an extraschedular basis. An extraschedular disability rating is warranted if the case presents an exceptional or unusual disability picture, with particular attention paid to whether the disability results in marked interference with employment. 38 C.F.R. § 3.321(b)(1). As the Board is remanding the newly raised claim of entitlement to TDIU, and this remand will require development that may produce additional evidence in support of a determination that the Veteran’s right knee disability has contributed to occupational impairment, the Board finds that the extraschedular claim is intertwined inextricably with the TDIU claim still on appeal, and accordingly must be deferred. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two claims are “inextricably intertwined” when they are so closely tied together that a final decision on one claim cannot be rendered until a decision on the other claim has been made). The matters are REMANDED for the following action: Issue the Veteran notice in accordance with regard to the inferred claim for TDIU. Said notice should include provision to the Veteran of the appropriate TDIU claim form (VA Form 21-8940) and requirements to establish a TDIU. The Veteran should also be asked to complete and sign a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. All records and responses should be associated with the claims file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the claims file. The Veteran and his service representative should be notified of unsuccessful efforts in this regard in order to allow the Veteran the opportunity to submit the records for VA review. Advise the Veteran and his service representative that it is ultimately the Veteran’s responsibility to obtain (from his employer) and submit (to VA) his employment records, particularly those pertaining to lost time or sick leave as well as those relating to the facts and circumstances of separation, termination or retirement. Further advise the Veteran that he should submit evidence documenting any attempts to obtain employment, to include the number and status of job applications filed, to include any rejection letters of employment and that he should submit evidence documenting marginal employment, if any, secured that resulted in earned annual income that does (or did) not exceed the poverty threshold for one person. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel