Citation Nr: 20006464 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 08-17 706 DATE: January 28, 2020 ORDER Entitlement to a rating in excess of 10 percent for the service-connected left knee contusion based on instability is denied. Entitlement to a rating in excess of 10 percent for the service-connected left knee arthritis with painful limited motion is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s left knee contusion is manifested by mild instability, at most. 2. The Veteran’s left knee arthritis with painful limited motion is manifested by, at worst, limitation of flexion to 60 degrees. 3. The evidence of record does not show that the Veteran was unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the service-connected left knee contusion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5299-5257. 2. The criteria for a rating in excess of 10 percent for the service-connected left knee arthritis with painful limited motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010, 5260. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from May 1971 to May 1973. Increased Ratings 1. Entitlement to a rating in excess of 10 percent for the service-connected left knee contusion based on instability 2. Entitlement to a rating in excess of 10 percent for the service-connected left knee arthritis with painful limited motion The Veteran contends that higher ratings are warranted for his service-connected left knee disabilities. His left knee disabilities have two separate ratings—one characterized as a left knee contusion which is rated as 10 percent under Diagnostic Code 5299-5257 and another defined as left knee arthritis with painful limited motion which is rated under Diagnostic Code 5010 (which pertains to X ray evidence of arthritis with noncompensable limitation of motion). (In this regard, as is discussed below, the range of motion of the Veteran’s left knee, at worst, has been shown to be 60 degrees of flexion and zero degrees of extension.) Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5299 refers to an unlisted disability of the musculoskeletal system, while Diagnostic Code 5257 pertains to other impairment of the knee as well as knee instability. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans, when a flare-up is not observable at the time of examination A March 2008 VA examination report shows that the Veteran complained of swelling and throbbing in the left knee, which was increased when standing and walking. He reported taking ibuprofen for treatment. No flare-ups were reported. The Veteran used a cane to help with ambulation. No dislocation or subluxations were reported. No problems of daily activity were reported. Examination of the left knee showed some joint effusions. Instability of the left knee was not shown. Joint line tenderness was not shown on examination. Range of motion was noted as 0 degrees of extension and 104 degrees of flexion. The examiner reported that the Veteran’s subjective complaints were not supported by the objective evidence. No functional impairment on employment was noted due to the left knee disability. A June 2009 VA examination report shows that the Veteran reported throbbing pain in the left knee which varied in severity. He reported swelling of the knee. He also reported he needed a cane to walk and stand. He reported episodes of locking and giving way. Flare-ups were reported but the Veteran could not state the exact frequency but may be up to several times per week, lasting a few hours for each episode. The examiner noted that the Veteran moved with a slight limp on the left side. Range of motion was 0 degrees of extension and 110 degrees to flexion. The Veteran demonstrated marked guarding and pain behavior throughout the examination. No additional limitation of range of motion was shown on repetitive use. General tenderness to palpation was noted. Instability was not shown. The examiner noted that Deluca provisions and additional limitations of motion after three repetitive motions was not shown. Regarding functional impairments, the examiner reported that the Veteran was independent in his activities of daily living. Employment related restrictions secondary to his left knee would include no prolonged standing, walking, squatting, or climbing. A September 2013 VA knee examination report shows that the Veteran was diagnosed with left knee arthralgia. The Veteran reported pain as described as sharp, stabbing, and unbearable. The Veteran also reported that his knee locked up and he had problems with prolonged standing or sitting. Flare ups were reported as causing locking of the left knee. Range of motion testing was shown has flexion to 60 degrees with pain, and extension to 10 degrees with no evidence of painful motion. The examiner observed that, while the Veteran was sitting, he was able to flex his knees further than at any time during the range of motion evaluations. The examiner noted that it was unlikely that the measurements noted on the left knee were an accurate representation of what the Veteran could functionally perform. The examiner remarked that the Veteran demonstrated greater ranges, when not being measured than when measured during the examination. Functional loss was noted as less movement than normal, disturbances of locomotion, and interference with sitting, standing, and weight-bearing. Pain on palpation was noted. Muscle strength testing was 5/5. Joint stability testing was normal. Patellar subluxations were not diagnosed. Meniscal conditions were not diagnosed. The examiner again remarked that when the Veteran was seated, he had his knees flexed to at least 90 degrees in gait, and he was flexing his knees greater than 90 degrees and when seen bending over from a distance he also flexed the knees greater than 90 degrees. The examiner noted that the Veteran had poor effort and willingness to fully flex or move through motions during the evaluation. The examiner noted that the Veteran requested help to walk while in the exam room and to get on and off the exam table. The examiner reported that he had no problems walking with minimal limp using a caine down the hallway and no issues initially getting seated or when he went out of the room to use the restroom. The Veteran complained of pain with minimal palpation on the left knee much more so than when the joint line, ligaments, and patella facets were palpated with more effort. An October 2015 VA knee examination report shows that arthritis of the left knee was diagnosed. The Veteran reported symptoms of swelling and pain if he stood or walked for too long. Climbing a flight of stairs was also noted to cause pain. The use of a knee brace and cane were noted. Flare ups were reported. Range of motion was as flexion to 140 degrees and extension to 0 degrees with pain and functional loss. Pain on weight bearing was shown. Objective evidence of localized tenderness or pain on palpation was shown. Objective evidence of crepitus was not observed. Repetitive use testing was performed with no additional loss of range of motion. The examiner reported that an opinion could not be provided regarding whether pain, weakness, fatigability or incoordination could significantly limit functional ability with repeated use over time. Muscle strength testing was 5/5 with no muscle atrophy. Joint instability was not shown on evaluation. Meniscal conditions were not diagnosed. The Veteran sat with left knee flexed to 110 degrees without difficulty. In the supine position, he had full extension of the left knee but otherwise would not allow range of motion testing due to complaint of pain. Functional impact was noted as work related restrictions regarding prolonged weightbearing, squatting and climbing. Sedentary work was not precluded. A September 2016 VA knee examination report shows that the Veteran was observed with a shuffling gait and using a cane. He was also noted to have a knee sleeve. The Veteran was noted to be vague on doing his activities of daily living, and self-reported that he was not employed to overall body pain. The examiner reported that a proper or complete exam could not be obtained due to significant self-limitation on the Veteran’s part. The examiner noted that when the Veteran was called into the examination room, he was observed seated upright at a 90 degree angle with both feet on floor and knees bent at 90 degrees. He was noted to rise easily, and then ambulated with no shuffling gait. After the examination the Veteran required assistance to get off the exam table and walking out to the waiting room. After the examiner left, the Veteran was noted to walk normally out of the waiting room. The examiner noted that the Veteran reported no flare ups of the knee condition. Range of motion testing of the left knee could not be performed due to the Veteran self-limiting and inability to participate in the examination. The Veteran reported severe pain, but functional loss could not be evaluated due to lack of cooperation on the Veteran’s part. A September 2019 VA knee examination report shows that the Veteran was diagnosed with residuals contusions of the left knee with compression fracture of tibial spine, and traumatic arthritis of the left knee with limitation of motion and painful motion. The Veteran reported taking over the counter medication and pain cream for temporary relief. He reported daily throbbing pain. Flare ups were not reported. Functional impairment was reported as pain with standing and sitting, especially standing too long. Examination of the left knee showed flexion to 110 degrees with pain and extension to 0 degrees with pain. Left knee examination showed objective evidence of pain on passive motion testing. No objective evidence of pain when the joint was used in non-weight bearing. Range of motion was noted not to contribute to functional loss. Pain was noted to cause functional loss. Pain on palpation over the anterior, medial, and lateral surfaces. Repetitive use testing showed no additional loss of range of motion. Pain, weakness, fatigability, or incoordination significantly limit function ability with flare up was not reported. Left knee muscle strength was noted as 4/5 with no reduction of muscle strength. Muscle atrophy and ankylosis were not reported. Left knee was noted not to show a history of recurrent subluxation or lateral instability. A history of recurrent effusions was reported requiring aspiration of fluids. Joint stability testing was normal. Meniscal conditions were not noted. The Veteran reported the constant use of a cane. Functional impact was noted as an inability to tolerate prolonged sitting, standing, walking, climbing, squatting, bending, twisting, pushing, pulling and heavy lifting due ot the knee disabilities. The examiner noted that the Veteran last reported working in 1973 as a personnel representative. After a review of the evidence of record, the Board finds that ratings in excess of 10 percent for left knee contusion or in excess of 10 percent for left arthritis is not warranted. Initially, the Board finds that during several of the VA examinations that the Veteran underwent, examiner determined that he was not fully participating in the examination and exaggerated his symptoms. The examiners remarked that the Veteran could achieve great range of motion and functional capacities. Such evidence reduces the Veteran’s credibility and calls into question the reliability of the Veteran’s participation and reporting in earnest with respect to the range of motion of the left knees. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness); Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Addressing limited motion, the Board notes that the evidence shows, with regards to flexion, that the Veteran has been able to credible achieve flexion to 60 degrees at worse, with pain, which is a non-compensable limitation. In order to warrant the next higher rating of 20 percent under Diagnostic Code 5260, limitation of flexion would need to be shown to be limited to 30 degrees. As there is no evidence of limitation of flexion to 30 degrees, an increased rating under Diagnostic Code 5260 is not warranted. Also, the Veteran's left knee extension has been credibly been shown to be full, to zero degrees. Although there was a one-time episode of a finding of limitation of extension to 10 degrees (at the September 2013 VA examination), the remainder of the other evaluations consistently showed full extension to zero degrees. Thus, a separate compensable rating based on limitation of extension pursuant to Diagnostic Code 5261 is not warranted. Additionally, the Board finds that the Veteran is not entitled to a rating greater than the current 10 percent rating under Diagnostic Code 5010, governing arthritis. As the Veteran's left knee disability does not involve two major joints with incapacitating episodes, 10 percent remains the highest rating warranted for arthritis even considering functional loss due to pain and other factors. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Addressing the Veteran’s 10 percent rating for a left knee contusion rated under Diagnostic Code 5299-5257. Ten percent, 20 percent, and 30 percent ratings are assigned for recurrent subluxation or lateral instability that is slight, moderate, or severe, respectively. Words such as “slight,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, such is not dispositive of an issue. Here, while there are some reports of the knee giving way, objective testing showed no knee instability or subluxation. Given these facts, as well as the Veteran’s questionable efforts during examination, any reports of instability are less probative then objective knee stability testing shown during examinations. Therefore, the Board finds that a rating in excess of 10 percent under Diagnostic Code 5299-5257 is not warranted as moderate subluxation or lateral instability has not been demonstrated. Consideration of other diagnostic codes for rating a knee disability, such as Diagnostic Codes 5256, 5258, 5259, 5262, and 5263, is inappropriate as the Veteran's left knee disability does not include the pathology required in the criteria for those Diagnostic Codes of ankylosis, dislocation of the semilunar cartilage, tibia or fibula impairments, or genu recurvatum. 38 C.F.R. § 4.71a. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher or separate ratings for the Veteran’s service-connected left knee disabilities. Therefore, these increased rating claims must be denied. 3. Entitlement to a TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. The term ‘substantially gainful occupation’ does not “set a clear numerical standard for determining a TDIU” but does indicate an amount less than total. Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. Here, the Board notes that the Veteran does not meet the schedular criteria for TDIU, because he is only service connected for two left knee disabilities—each evaluated as 10 percent disabling, with a combined service-connected rating of 20 percent. 38 C.F.R. § 4.16(a). A TDIU may be granted on an extraschedular basis, however, if the Veteran is unable to secure and maintain substantially gainful employment due to any or all previously service-connected disabilities. In August 2012, the RO asked the Veteran to complete a VA Form 21-8940 Veteran Application for Increased Compensation Based on Unemployability. To this date, however, he has not returned the form. The “duty to assist is not always a one-way street,” and a veteran is obliged to cooperate in the development of the pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board will decide this matter based on the evidence of record as it currently stands. A review of the Veteran Social Security Records shows that his disability determination was based upon a low back condition with radiculopathy and bilateral arthritis of the knees. The Veteran also reported that he had not had full time work since discharge from service in 1973 due to his disabilities. As noted above, the VA examiners did note that the Veteran’s left knee disabilities did cause some impairment with his ability to work. However, there are no findings showing that he would be precluded from maintaining gainful employment. While some limitations in sitting, standing, and lifting were present, these impairments were not of such severity to cause him an inability to be gainfully employed. Additionally, the Veteran has not submitted his VA Form 21-8940, which frustrates the Board review. The Board acknowledges that the Veteran is competent to report symptoms of his service-connected disabilities. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. He is not, however, competent to identify a specific level of disability of his disabilities according to the appropriate Diagnostic Codes or to assess whether the symptoms preclude employment. Here, the Board has reviewed all of the evidence of record but concludes that the VA opinions of record are the most competent and probative evidence of record and are therefore accorded greater weight than the Veteran’s subjective complaints. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Moreover, the Veteran’s less than credible performances during VA evaluations concerning his left knee cause his self-reports of an inability to be unreliable. While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability level, the evidence of record does not support his claim that his service-connected left knee disabilities alone are sufficient to produce unemployability. Although they undoubtedly produce some, even significant, impairment, the evidence does not reflect substantially gainful employment is precluded solely due to these service-connected disabilities. Moreover, a review of the Veteran’s VA treatment records shows no reports or assessments that his service-connected disabilities caused him to become unemployable. Additionally, none of the VA examination reports of record found that either of these service-connected left knee disabilities prevent the Veteran from working or obtaining or maintaining substantially gainful employment. Accordingly, the Board concludes that the Veteran’s service-connected left knee disabilities do not prevent him from obtaining or maintaining substantially gainful employment. As such, a TDIU is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.