Citation Nr: 20003340 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 07-35 301 DATE: January 14, 2020 ORDER A rating in excess of 10 percent for left knee instability is denied. A rating in excess of 10 percent for left knee limitation of extension is denied. A rating in excess of 20 percent for a left knee meniscus disability is denied. A rating in excess of 10 percent for right knee instability is denied. A rating in excess of 20 percent for a right knee meniscus disability is denied. An earlier effective date of January 30, 2012, for the grant of a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s left knee disabilities are not productive of ankylosis; moderate recurrent subluxation or lateral instability; flexion functionally limited to 45 degrees or less; extension functionally limited to 15 degrees or more; an impairment of the tibia and fibula; or genu recurvatum. 2. The Veteran’s left knee meniscus disability is assigned a 20 percent rating, the maximum rating authorized under Diagnostic Code 5258. 3. The Veteran’s right knee disabilities are not productive of ankylosis; moderate recurrent subluxation or lateral instability; flexion functionally limited to 45 degrees or less; extension functionally limited to 15 degrees or more; an impairment of the tibia and fibula; or genu recurvatum. 4. The Veteran’s right knee meniscus disability is assigned a 20 percent rating, the maximum rating authorized under Diagnostic Code 5258. 5. Prior to January 30, 2012, the Veteran did not meet the schedular rating criteria for a TDIU, and his service-connected disabilities were not shown to preclude him from obtaining or maintaining substantially gainful employment to warrant referring this claim for extra-schedular consideration. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran’s left knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 2. The criteria for a rating in excess of 10 percent for the Veteran’s left knee limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5261. 3. The criteria for a rating in excess of 20 percent for the Veteran’s left knee meniscal disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5258. 4. The criteria for a rating in excess of 10 percent for the Veteran’s right knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 5. The criteria for a rating in excess of 20 percent for the Veteran’s right knee meniscal disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5258. 6. The criteria for an effective date of January 30, 2012, for the grant of a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1981 to December 1992. In connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) in May 2013. An October 2019 letter informed the Veteran that the VLJ who conducted the May 2013 hearing was no longer at the Board and asked him if he wished to attend another hearing before a VLJ who would render a determination in his case. He was further informed that if no response was received that it would be assumed that he did not want another hearing and that a decision on his claim would be made. No response was received from the Veteran. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed increased rating claims for his bilateral knee disabilities, which were originally denied by an October 2006 rating decision. An April 2013 rating decision granted service connection for a left knee meniscus disorder evaluated at 20 percent effective January 30, 2012 and service connection for right knee instability evaluated at 10 percent effective June 28, 2006. The April 2013 rating decision also granted an increased rating of 20 percent for a right knee meniscus disorder effective January 30, 2012. The Veteran asserts that he is entitled to higher ratings. The Veteran has been granted a total of five ratings for his bilateral knee disabilities. His left knee limitation of extension is rated 10 percent disabling under Diagnostic Code 5261. His left knee instability is rated 10 percent disabling under Diagnostic Code 5257. His left knee meniscus disability is rated 20 percent under Diagnostic Code 5258 effective January 30, 2012. His right knee instability is rated 10 percent disabling under Diagnostic Code 5257. His right knee meniscus disability is rated 10 percent prior to January 30, 2012, and 20 percent afterwards, under Diagnostic Code 5258. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability. A 10 percent rating is assigned for slight recurrent subluxation or lateral instability, a 20 percent is assigned for moderate recurrent subluxation or lateral instability, and a 30 percent is assigned for severe recurrent subluxation or lateral instability. Diagnostic Code 5257 is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Diagnostic Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, which is synonymous with the meniscus. A 20 percent rating, the maximum rating, is assigned for dislocated meniscus with frequent episodes of locking, pain, and effusion into the joint. A 10 percent rating is assigned for symptomatic removal of the meniscus. Diagnostic Code 5260 evaluates limitation of knee flexion. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees or extension limited to 15 degrees. A 30 percent rating is assigned for either flexion limited to 15 degrees or extension limited to 20 degrees. Diagnostic Code 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5256 evaluates ankylosis of the knee, Diagnostic Code 5262 evaluates impairment of the tibia and fibula, and Diagnostic Code 5263 evaluates genu recurvatum. The medical record does not document any of these conditions. Therefore, these Diagnostic Codes are not applicable and will not be discussed further. The Veteran’s medical records show that he treats for his bilateral knee disabilities. In August 2008, he was found to have bilateral knee laxity. In June 2009, he had decreased knee range of motion due to pain. In September 2009, he had extension to 120 degrees bilaterally. The Veteran has been afforded multiple VA examinations for his bilateral knee disabilities. In September 2006, the Veteran was afforded a VA examination. He reported that he underwent a right knee arthroscopy with meniscectomy in 1989. He reported bilateral knee pain, swelling, occasional locking and giving away, instability, stiffness, and decreased endurance when standing. He was independent in activities of daily living. He denied having any episodes of dislocation or recurrent subluxation. On examination, he demonstrated left knee flexion to 119 degrees with pain at 90 degrees and normal extension to 0 degrees. He demonstrated right knee flexion to 124 degrees with pain at 90 degrees and normal extension to 0 degrees. The examiner noted that pain had a major functional impact. The examiner reported stability tests for both knees. The examiner reported positive meniscus tests for both knees. In October 2008, the Veteran was afforded a VA examination. He reported having a lack of endurance when walking. He denied having episodes of dislocation or recurrent subluxation. He was independent in self care and continued to work as a manager. On examination, he demonstrated left knee flexion to 100 degrees with pain starting at 70 degrees and normal extension to 0 degrees. The examiner reported that the Veteran was unable to perform repetitive use testing due to pain. In October 2010, the Veteran was afforded a VA examination. He reported having daily pain that had worsened. He reported he was able to stand 15 to 30 minutes and walk a quarter mile. On examination, he demonstrated left knee flexion to 110 degrees and normal extension to 0 degrees, with evidence of pain. He demonstrated right knee flexion to 120 degrees and normal extension to 0 degrees, with evidence of pain. Repetitive use testing resulted in additional limitation of motion. He had normal stability tests. In April 2011, the Veteran was afforded a VA examination. He reported that his knees were stiff and painful. He denied having any flare-ups or functional loss. On examination, he demonstrated left knee flexion to 140 degrees and normal extension to 0 degrees, both with pain. He demonstrated right knee flexion to 140 degrees and normal extension to 0 degrees, both with pain. The examiner indicated that there was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation. Repetitive use testing resulted in no additional limitation of motion. The Veteran retained normal 5/5 strength bilaterally with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran had normal joint stability tests. The examiner indicated that the Veteran had no evidence or history of recurrent patellar dislocation, shin splits, stress fracture, chronic exertional compartment syndrome, genu recurvatum, or meniscal condition. In June 2011, the Veteran was afforded a VA examination. He reported that his knees were stiff and painful. He denied having any flare-ups or functional loss. On examination, he demonstrated left knee flexion to 140 degrees and normal extension to 0 degrees, both with pain. He demonstrated right knee flexion to 140 degrees and normal extension to 0 degrees, both with pain. The examiner indicated that there was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation. Repetitive use testing resulted in no additional limitation of motion. The Veteran retained normal 5/5 strength bilaterally with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran had normal joint stability tests. The examiner indicated that the Veteran had no evidence or history of recurrent patellar dislocation, shin splits, stress fracture, chronic exertional compartment syndrome, genu recurvatum, or meniscal condition. In January 2012, the Veteran was afforded a VA examination. He reported that his knees were stiff and painful. He denied having any flare-ups or functional loss. On examination, he demonstrated left knee flexion to 140 degrees and normal extension to 0 degrees, both with pain. He demonstrated right knee flexion to 140 degrees and normal extension to 0 degrees, both with pain. The examiner indicated that there was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation. Repetitive use testing resulted in no additional limitation of motion. The Veteran retained normal 5/5 strength bilaterally with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran had normal joint stability tests. The examiner indicated that the Veteran had no evidence or history of recurrent patellar dislocation, shin splits, stress fracture, chronic exertional compartment syndrome, genu recurvatum, or meniscal condition. In October 2014, the Veteran was afforded a VA examination. He reported that his knees were stiff and painful. He denied having any flare-ups or functional loss. On examination, he demonstrated left knee flexion to 140 degrees and normal extension to 0 degrees, both with pain. He demonstrated right knee flexion to 140 degrees and normal extension to 0 degrees, both with pain. The examiner indicated that there was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation. Repetitive use testing resulted in no additional limitation of motion. The Veteran retained normal 5/5 strength bilaterally with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran had normal joint stability tests. The examiner indicated that the Veteran had no evidence or history of recurrent patellar dislocation, shin splits, stress fracture, chronic exertional compartment syndrome, genu recurvatum, or meniscal condition. In February 2018, the Veteran was afforded a VA examination. He reported that his knees were stiff and painful. He denied having any flare-ups or functional loss. On examination, he demonstrated left knee flexion to 140 degrees and normal extension to 0 degrees, both with pain. He demonstrated right knee flexion to 140 degrees and normal extension to 0 degrees, both with pain. The examiner indicated that there was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation. Repetitive use testing resulted in no additional limitation of motion. The Veteran retained normal 5/5 strength bilaterally with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran had normal joint stability tests. The examiner indicated that the Veteran had no evidence or history of recurrent patellar dislocation, shin splits, stress fracture, chronic exertional compartment syndrome, genu recurvatum, or meniscal condition. Regarding the Veteran’s left knee, the Board finds that the criteria to assign a rating in excess of 10 percent for the Veteran’s recurrent subluxation or lateral instability is not warranted. The Veteran has been assigned a 10 percent rating under Diagnostic Code 5257 for slight recurrent subluxation or lateral instability. However, at the September 2006 he reported instability, but at both the September 2006 and October 2008 VA examinations, the Veteran denied having any episodes of dislocation or lateral subluxation. At the October 2010, April 2011, June 2011, January 2012, October 2014, and February 2018 VA examinations, the Veteran had normal joint stability tests. As such, the Veteran is not found to meet the criteria for a 20 percent rating under Diagnostic Code 5257, which requires moderate recurrent subluxation or lateral instability. Accordingly, the Veteran is not found to meet the criteria for a 20 percent rating. Turning to limitation of flexion, the Board finds that the criteria to assign a separate compensable rating under Diagnostic Code 5260 have not been met. The Veteran consistently demonstrated extension limited, at most and even considering complaints of pain, to 70 degrees, well in excess of a 60 degree limitation equivalent to a noncompensable rating. As such, the Veteran is not found to meet even the criteria for a compensable rating under Diagnostic Code 5260. Turning to limitation of extension, the Board finds that the criteria to assign a rating in excess of 10 percent under Diagnostic Code 5261 have not been met. The Veteran consistently demonstrated normal extension in his left knee well in excess of a 5 degree limitation, equivalent to a noncompensable rating. Accordingly, the Veteran is not found to meet even the criteria for a noncompensable rating under Diagnostic Code 5261. However, the Board will not disturb the assigned 10 percent rating. Finally, regarding a left meniscal disability, the Veteran’s left meniscal disability has been assigned the maximum schedular rating available for a meniscal disability under Diagnostic Code 5258, a 20 percent rating. As such, there is no legal basis upon which to award a higher rating. Regarding the Veteran’s right knee, the Board finds that the criteria to assign a rating in excess of 10 percent for the Veteran’s recurrent subluxation or lateral instability is not warranted. The Veteran has been assigned a 10 percent rating under Diagnostic Code 5257 for slight recurrent subluxation or lateral instability. However, at the September 2006 he reported instability, but at both the September 2006 and October 2008 VA examinations, the Veteran denied having any episodes of dislocation or lateral subluxation. At the October 2010, April 2011, June 2011, January 2012, October 2014, and February 2018 VA examinations, the Veteran had normal joint stability tests. As such, the Veteran is not found to meet the criteria for a 20 percent rating under Diagnostic Code 5257, which requires moderate recurrent subluxation or lateral instability. Accordingly, the Veteran is not found to meet the criteria for a 20 percent rating. Turning to limitation of flexion, the Board finds that the criteria to assign a separate compensable rating under Diagnostic Code 5260 have not been met. The Veteran consistently demonstrated extension limited, at most and even considering complaints of pain, to 90 degrees, well in excess of a 60 degree limitation equivalent to a noncompensable rating. As such, the Veteran is not found to meet even the criteria for a compensable rating under Diagnostic Code 5260. Turning to limitation of extension, the Board finds that the criteria to assign a separate compensable rating under Diagnostic Code 55261 have not been met. The Veteran consistently demonstrated normal extension in his left knee well in excess of a 5 degree limitation, equivalent to a noncompensable rating. Accordingly, the Veteran is not found to meet even the criteria for a noncompensable rating under Diagnostic Code 5261. Finally, regarding a right meniscal disability, the Veteran’s right meniscal disability has been assigned the maximum schedular rating available for a meniscal disability under Diagnostic Code 5258, a 20 percent rating. As such, there is no legal basis upon which to award a higher rating. The Board has considered whether higher disability evaluations are 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 for either knee. 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 October 2008 VA examiner reported that the Veteran was independent in self care and continued to work. The October 2010, April 2011, June 2011, June 2012, October 2014, and February 2018 VA examiners reported that repetitive use testing resulted in no additional limitation of motion. However, even considering any additional limitations due to pain, the Veteran nevertheless consistently retained flexion and extension well in excess of noncompensable ratings. As such, the evidence simply does not support the conclusion that the Veteran’s left knee disability or right knee disability results in findings consistent with higher ratings. Thus, greater ratings for limitations of flexion and extension are not warranted under DeLuca. 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. Here, the Veteran consistently retained flexion in excess of 10 percent ratings and extension in excess of compensable ratings. As such, there is no basis for higher ratings under Diagnostic Codes 5260 or 5261 for either knee. To the extent that it is argued that the Veteran’s range of motion is painful and therefore would merit a separate compensable rating under 38 C.F.R. § 4.59, that provision states that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. However, here, the Veteran is currently assigned the minimum compensable ratings, and ratings in excess of 10 percent based on pain alone is not warranted. Accordingly, the criteria for a schedular rating in excess of 10 percent for left knee instability, a schedular rating in excess of 10 percent for left knee limitation of extension, a schedular rating in excess of 20 percent for a left knee meniscus disability, a schedular rating in excess of 10 percent for right knee instability, and a schedular rating in excess of 20 percent for a right knee meniscus disability have not been met, and the claims are denied. Effective Date During the period on appeal rising from the October 2006 rating decision, the Board found that the issue of entitled to a TDIU had been raised and remanded the claim for additional development in September 2013. A September 2016 rating decision granted a TDIU effective January 30, 2012, the date the Veteran met the schedular requirements for a TDIU. The Veteran asserts that he is entitled to an effective date prior to January 30, 2012. The general rule for earlier effective dates for service connection provides that if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement will be either the day following separation or the date entitlement arose. 38 U.S.C. § 5110 (b)(1). If a claim is not received within a year of separation, VA regulations provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101 (a). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A review of the record shows that the Veteran met the schedular requirements for a TDIU on January 30, 2012. While the Veteran asserts that he is entitled to an earlier effective date, the date that entitlement arose was January 30, 2012. As such, he was granted an effective date as of the date entitlement arose. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and 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 disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Prior to January 30, 2012, the Veteran did not meet the schedular rating criteria for a TDIU as his combined disability rating resulted in, at most, a 40 percent combined rating. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. The September 2006 VA examiner reported that the Veteran’s bilateral knee disabilities resulted in a decreased ability to do household chores, walk on irregular surfaces, climb ladders, get up onto the roof, and do yard chores, but he remained independent in activities of daily living and continued to work. The October 2008 VA examiner reported that the Veteran remained independent in activities of daily living and continued to work. The October 2010 VA examiner reported that the Veteran continued to be employed and had only missed one week during the past 12-month period due to knee pain. The April 2011 VA examiner reported that the Veteran had been assigned different work duties due to difficulty lifting and carrying. The June 2011 VA examiner reported that the Veteran continued to be employed and had only missed one week during the past 12-month period due to knee pain As such, the evidence of record does not establish that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected bilateral knee disabilities prior to January 30, 2012, and the evidence of record shows that the Veteran actually worked during this period. Absent indication of an inability to sustain substantial gainful employment, the Board is not required to refer this claim to the Director of the Compensation Service or appropriate designee for consideration of whether a TDIU alternatively is warranted on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. As such, VA regulations dictate that the date entitlement arose should be the effective date that is assigned. Accordingly, the claim for an effective date earlier than January 30, 2012, for the grant of a TDIU is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.