Citation Nr: 19122011 Decision Date: 03/26/19 Archive Date: 03/23/19 DOCKET NO. 17-27 743 DATE: March 26, 2019 ORDER The appeal seeking entitlement to a disability rating in excess of 60 percent for service-connected bilateral hearing loss is dismissed. The appeal seeking entitlement to a disability rating in excess of 10 percent for service-connected tinnitus is dismissed. A disability rating in excess of 10 percent prior to November 17, 2016, and in excess of 30 percent from November 9, 2018, for service-connected left knee, limited extension is denied. A 30 percent disability rating, but no higher, from November 17, 2016, to November 9, 2018, for service-connected left knee, limited extension is granted, subject to the regulations governing the payment of monetary awards. A total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. In a March 2018 statement, prior to the promulgation of a decision in the appeal, the Veteran notified VA that he wished to withdraw the issues of entitlement to a disability rating in excess of 60 percent for service-connected bilateral hearing loss and entitlement to a disability rating in excess of 10 percent for service-connected tinnitus. 2. For the period prior to November 17, 2016, the Veteran’s left knee, limited extension was manifested by forward flexion limited to 110 degrees and extension limited to 10 degrees. 3. From November 17, 2016, there is evidence the Veteran’s left knee, limited extension has been limited to 20 degrees; extension limited to 30 degrees has not been shown. 4. The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for entitlement to a disability rating in excess of 60 percent for service-connected bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal for entitlement to a disability rating in excess of 10 percent for service-connected tinnitus have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for a disability rating in excess of 10 percent for service-connected left knee, limited extension, prior to November 17, 2016, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5526-5263. 4. The criteria for a disability rating of 30 percent, but no higher, for service-connected left knee, limited extension, from November 17, 2016, to November 9, 2018, have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5526-5263. 5. The criteria for a disability rating in excess of 30 percent for service-connected left knee, limited extension, from November 9, 2018, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5526-5263. 6. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1948 to June 1950 and from October 1950 to June 1951. A hearing before the undersigned Veterans Law Judge was conducted in November 2018. A transcript is of record. Notably, at the hearing, the Veteran waived initial Agency of Original Jurisdiction (AOJ) review of any new evidence added to the claims file after the hearing. See transcript. Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In a March 2018 letter, the Veteran withdrew the appeals for entitlement to a disability rating in excess of 60 percent for service-connected bilateral hearing loss and entitlement to a disability rating in excess of 10 percent for service-connected tinnitus. See correspondence. Hence, there remain no allegations of errors of fact or law for appellate consideration in these matters. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. Increased Rating Entitlement to a disability rating in excess of 10 percent prior to November 9, 2018, and in excess of 30 percent thereafter for service-connected left knee, limited extension Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. Normal range of motion of the knee is from 0 degrees of extension (leg in straight line from hip to heel) to 140 degrees of flexion (leg bent with heel near posterior thigh). See 38 C.F.R. § 4.71a, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, a noncompensable rating is warranted where knee flexion is limited to 60 degrees, a 10 percent rating is warranted where knee flexion is limited to 45 degrees, a 20 percent rating is warranted where knee flexion is limited to 30 degrees, and a 30 percent rating is warranted where knee flexion is limited to 15 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261 a noncompensable rating is warranted where knee extension is limited to 5 degrees, a 10 percent rating is warranted where knee extension is limited to 10 degrees, a 20 percent rating is warranted where knee extension is limited to 15 degrees, a 30 percent rating is warranted where knee extension is limited to 20 degrees, a 40 percent rating is warranted where knee extension is limited to 30 degrees, and a 50 percent rating is warranted where knee extension is limited to 45 degrees. Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes (DCs) that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). 38 C.F.R. § 4.71a, DC 5256 provides for a 30 percent rating (and even higher ratings) for ankylosis of a knee in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). According to DC 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability, a 10 percent rating is assigned with evidence of slight recurrent subluxation or lateral instability of a knee; 20 percent rating is assigned with evidence of moderate recurrent subluxation or lateral instability; and 30 percent rating is assigned with evidence of severe recurrent subluxation or lateral instability. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under DC 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). 38 C.F.R. § 4.71a, DC 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. Thus, if there are symptoms as a residual of a meniscectomy (partial removal of semilunar cartilage in the knee) which are subluxation or instability, or limitation of motion, separate ratings for such manifestation may be assigned. However, 38 C.F.R. § 4.71a, DC 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. A locked knee is “a condition in which the knee lacks full extension and flexion because of internal derangement, usually the result of a torn meniscus.” http://medical-dictionary.thefreedictionary.com/locked+knee. Thus, locking encompasses limitation of motion such that assigning additional and separate rating for limited knee flexion or extension under, respectively, DCs 5260 or 5261 would constitute pyramiding under 38 C.F.R. § 4.14 and, as such, is prohibited. See VAOPGCPRECs 23-99 and 9-93. As for the scar associated with the disability, the applicable Diagnostic Code provides that one or two scars that are unstable or painful are rated 10 percent disabling. Diagnostic Code 7802 pertains to scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. When superficial scars do not cause limited motion and are in an area or areas of 144 square inches (929 sq. cm.) or greater, they are rated 10 percent disabling. See 38 C.F.R. § 4.118. By way of background, in the September 2016 rating decision on appeal, the Veteran was denied a rating in excess of 10 percent for his left knee, limited extension. The Veteran appealed that decision and while that claim was pending, on November 9, 2018, he filed a separate claim for service connection for left knee instability secondary to his left knee, limited extension. After additional development was conducted (which will be discussed in greater detail below), it was determined that although he did not have any objective evidence of left knee instability, he did have findings sufficient to warrant a 30 percent rating for his left knee, limited extension; this was assigned effective November 9, 2018 (the date of his claim for secondary service connection for left knee instability). See decision. After reviewing the evidence of record, the Board finds that the 30 percent rating currently assigned from November 9, 2018, for the Veteran’s service-connected left knee, limited extension, should be assigned from an earlier effective date of November 17, 2016; however, prior to that date, a rating in excess of 10 percent is not warranted. The Board also finds that from November 17, 2016, a rating in excess of 30 percent for the Veteran’s service-connected left knee, limited extension, is not warranted. Specifically, the evidence of record shows that on March 2016 VA examination the Veteran had left knee joint osteoarthritis. He reported flare-ups including pain and giving away. He also reported functional loss including limited weight bearing activities. His range of motion testing showed 10 to 110 degrees of flexion and 10 to 0 degrees of extension. Functional loss including limited kneeling and pain at extremes of motion. There was also evidence of pain with weight bearing, localized tenderness or pain on palpation of the joint or associated soft tissue as well as crepitus. Muscle strength was shown to be slightly diminished at 4/5 but no evidence of muscle atrophy or ankylosis. There was also no history of recurrent subluxation, lateral instability, recurrent effusion or joint stability. A cane was used regularly for ambulation. Functionally, the Veteran’s left knee impacted his employment by limiting weight bearing activities. See examination. On August 2016 VA examination, the Veteran was diagnosed with arthritic conditions on the left side. Flare-ups of the knee were reported following prolonged standing and increased activity. Functional loss including decreased range of motion were also reported. On examination, his range of motion was 110 degrees of flexion and 130 (10 degrees) degrees of extension. Pain was noted on flexion and extension. There was also evidence of pain with weight bearing as well as evidence of localized tenderness or pain on palpation of the joint or associated soft tissue in the subpatellar area. There was also evidence of crepitus. Pain also limited the Veteran’s functional ability with flare-ups, depending on the intensity of the pain. Muscle strength was slightly diminished at 4/5 but no muscle atrophy or ankylosis was found. Additionally, there was no history of recurrent subluxation, lateral instability, effusion or joint stability. A constant use of a brace and cane were noted for ambulation. Functionally, the Veteran’s employment status was impacted due to limited prolonged standing and increased activity. See examination. A November 17, 2016 VA treatment note reported the Veteran’s left knee range of motion was limited to 90 degrees of flexion and 20 degrees of knee extension. See CAPRI. In an April 2017 statement, the Veteran reported his left knee caused instability and buckling of the leg and standing and sitting for long periods of time was painful. See statement. At the November 2018 Board hearing, the Veteran testified his range of motion for limitation of extension of the knee was most accurately described as restricted to 45 degrees, based on a review of knee diagrams with limited extension. He reported experiencing times where his knee pain worsened, and he attributed it to over use of his knee which required him to take some Tylenol and relax. He indicated, however, that the pain never fully went away. He also testified that hew as unable to sit or stand for long periods of time, and experienced constant pain which required medication, often raising to a severe level. See transcript. As discussed above, on the day of the Veteran’s hearing with the Board, he also filed a claim for service connection for left knee instability. Accordingly, during the hearing, the Veteran and his representative stated they wished for the Board to consider any newly generated VA examination results in conjunction with this pending appeal, as he believed there had been a worsening of his knee since his last VA examination. See transcript. Subsequent to the November 2018 Board hearing, an updated VA knee examination was performed in December 2018. At that time, the Veteran was diagnosed with arthritic conditions on the left side. He endorsed worsening pain in the left knee with decreased flexibility and occasional buckling. He indicated his pain level could be as bad as 8 or 9 out of 10 on the pain scale with prolonged walking. He wore a knee brace during the day and required a cane for stability. He also took medication daily for pain. Flare-ups were documented following prolonged walking or increased bending and he suffered functional loss from decreased range of motion. On examination, the range of motion was limited to 25 to 60 degrees of flexion and 60 to 25 degrees of extension. Pain was noted on examination and caused functional loss. There was also evidence of pain with weight bearing, including tenderness over subpatellar, medial and lateral joint line as well as evidence of crepitus. There was no pain, weakness, fatigability or incoordination which limited his ability to function. Additionally, muscle strength was slightly diminished at 4/5 but no muscle atrophy or ankylosis was found. There was also no evidence of recurrent subluxation, effusion or joint instability. The Veteran did have a scar below the left knee that was 15 centimeters by .5 centimeters and another that was 7 centimeters by .5 centimeters. However, neither were painful or unstable. He also used a brace and cane constantly for ambulation. See examination. Based upon the findings reported during the December 2018 VA examination, the Veteran was assigned a 30 percent rating for his service-connected left knee, limited extension. Specifically, it was determined that although he did not have any objective evidence of joint instability, he did have left knee extension limited to 25 degrees. See December 2018 rating decision. However, as was noted above, in a November 17, 2016 VA treatment record, it was also reported that the Veteran’s range of motion in the left knee was limited to 20 degrees of extension. Therefore, the Board finds the 30 percent rating is warranted from this earlier date under Diagnostic Code 5261. However, prior to November 17, 2016, the most favorable evidence of record showed the Veteran’s forward flexion was limited to 110 degrees and his extension was limited to 10 degrees. There is no evidence that the Veteran’s flexion was limited to 30 degrees or his extension was limited to 15 degrees in order to warrant the next higher rating of 20 percent under Diagnostic Codes 5260 or 5261. Therefore, prior to November 17, 2016, a rating in excess of 10 percent is denied. In consideration of whether the Veteran warrants a rating in excess of 30 percent from November 17, 2016, the Board acknowledges the Veteran’s hearing testimony that he believes his extension is limited to 45 degrees, based on his review of images of limited extension of the knees. However, as shown through the VA examinations and range of motion findings reported in his VA treatment records, the objective medical evidence does not support such a finding. Therefore, a rating in excess of 30 percent on this basis is unsupported. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the VA examiners reported that the Veteran had 4/5 muscle strength in his left extremity. Despite this slightly diminished muscle strength, his joint stability testing was consistently normal, though he did use a brace and a cane for ambulation. Functional loss including movement and pain were noted on examination. While the Veteran has been shown to experience knee pain, the Court of Appeals for Veterans Claims (Court) has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, when quantified, the Veteran’s functional loss did not equate to the criteria needed to assign a higher rating under Diagnostic Codes 5260 or 5261. Specifically, there would need to be evidence of flexion limited to 30 degrees or extension limited to 10 degrees prior to November 17, 2016 and evidence of extension limited to 30 degrees thereafter. That is simply not shown. In sum, higher ratings are not warranted as the Veteran’s loss of range of motion with pain is adequately considered by the disability rating assigned herein. Additionally, because there is no medical evidence of ankylosis, instability, subluxation, dislocation of semi-lunar cartilage, malunion of the tibia and fibula or genu recurvatum, or painful scar a higher evaluation is not warranted under another diagnostic code for the left knee. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5262, 5263 and 7802. As such, the Board finds the Veteran’s left knee, limited extension, is denied a rating in excess of 10 percent prior to November 17, 2016, and in excess of 30 percent from November 9, 2018. However, from November 17, 2016, to November 9, 2018, a 30 percent (but no higher) rating is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to a TDIU Total ratings, referred to as TDIU, may be assigned in the first instance by the Board or the Regional Office when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b). Neither the effect of nonservice-connected disabilities nor of the veteran’s age may be considering in determining whether TDIU is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough to warrant TDIU. A high rating is in itself recognition that the disability 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. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is presently service-connected for bilateral hearing loss (rated 60 percent), left knee, limited extension (rated 10 percent prior to November 17, 2016, and 30 percent from that date (see above decision)), tinnitus (rated 10 percent), residuals of left knee laceration with traumatic arthritis (flexion) (rated 10 percent), a simple fracture of the right metatarsal (rated 0 percent), and a left knee scar (rated 0 percent). The Veteran has a combined disability rating of 70 percent prior to November 17, 2016, and 80 percent from that date. Therefore, for the entire period on appeal, the tenets of 38 C.F.R. § 4.16(a) apply. The Veteran completed a VA Form 21-8940 in June 2016 which reported he last worked part-time at a hardware store in 2004. He indicated his left knee prevented him from working because he was unable to walk without falling. Additionally, he indicated his hearing loss, occasional headaches and dizzy spells as well as the ringing in his ears all caused additional difficulties with his ability to work. He reported completing a high school education but having no additional education or training before or after becoming too disabled to work. See form. A July 2016 record from Social Security Administration (SSA) reported there were no medical records for the Veteran available to send to VA; however, the Veteran later reported during an August 2016 VA examination that he was found disabled from his heart (a nonservice-connected disability). Additionally, any records from 1991 (the date the Veteran was found to be disabled) would be outside the period of consideration anyway. See correspondence. At an August 2016 VA examination, the Veteran’s left knee disability was noted to limit his weight-bearing activity and preclude him from work that involved prolonged standing, walking, bending, squatting, or climbing. The examiner nevertheless opined the Veteran would be capable of sedentary work and noted that he had use of his upper extremities. See examination. At the November 2018 Board hearing, the Veteran testified he had last maintained gainful employment in 2008 or 2009. He recounted being told he should retire from his last part-time job because his knee was buckling. In one instance, it buckled and he fell, hurting his back, which required the company to pay for his recovery time. Coupled with his age, it was recommended he retire from working. The Veteran also testified he did not have specialized training that would aid in obtaining an office job nor had he gone through a Vocational Rehabilitation program. The Veteran explained that the pain he experienced while sitting, which required him to move around and impacted his concentration, would be prohibitive in a sedentary job. The Veteran further testified that, in the past, he had worked as a steamfitter before making aircraft parts. However, most recently he worked as a clerk stocking shelves or waiting on customers in a hardware store. See transcript. Functionally, the December 2018 VA examination found the Veteran’s left knee impacted his abilities in activities involving weight0bearing and range of motion because they caused pain. Additionally, the examiner noted that the Veteran’s decreased range of motion affected his ambulation and use of the lower extremity. See examination. After weighing all the evidence of record, to include those reported earlier in the decision, the Board finds the Veteran’s service-connected disabilities would render him unable to secure and follow a substantially gainful occupation. While the August 2016 and December 2018 VA examiners did not find that the Veteran’s left knee disability would preclude him performing an office position, the Veteran testified at the November 2018 Board hearing that sitting for extended periods of time challenged his left knee in the same way that standing did. Additionally, the VA examiners did not consider the Veteran’s other service-connected disabilities. In this regard, the Board finds it significant to note that while both examiners found the Veteran capable of sedentary work, he is also shown to have a significant hearing loss disability, as represented by his 60 percent rating. Furthemore, it is not shown that the Veteran has any specialized training, education or transferable skills which would assist him in obtaining a job in an office setting. (Continued on the next page)   Therefore, the Board resolves all reasonable doubt in favor of the Veteran and finds that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Accordingly, entitlement to TDIU is warranted. 38 C.F.R. §§ 3.341(a), 4.16, 4.18, 4.19. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Counsel