Citation Nr: 20042893 Decision Date: 06/25/20 Archive Date: 06/25/20 DOCKET NO. 14-41 866 DATE: June 25, 2020 ORDER A 40 percent rating, but no higher, under DC 5261 for limitation of extension is granted from January 9, 2012 to December 27, 2012. Entitlement to a TDIU is granted. FINDINGS OF FACT 1. The preponderance of the evidence weighs for finding that a 40 percent rating under DC 5261 for limitation of extension is warranted from January 9, 2012 to December 27, 2012. 2. The preponderance of the evidence indicates that the Veteran’s limitation of flexion is more than to 75 degrees and she does not have ankylosis; she does not have symptomatic dislocated semilunar cartilage to include with frequent episodes of locking, pain, and effusion into the joint; and there is no impairment of the tibia and fibula. 3. The Veteran is unable to obtain or retain substantially gainful employment due to her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for a right knee disability have been met only from January 9, 2012 to December 27, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5261. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1998 to October 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the Veteran specifically limited her appeal, in the September 2013 notice of disagreement, to a rating in excess of 10 percent for patellofemoral pain syndrome with degenerative joint disease of the right knee. Thus, the rating of 10 percent for right knee laxity will not be considered herein. These matters were previously remanded in a May 2018 Board decision for further evidentiary development. 1. A rating in excess of 10 percent for a right knee disability Legal Criteria – Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several DCs; however, the critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. 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. Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rating Criteria – Knee Disabilities The appropriate DCs for rating limitation of motion of the knee are DCs 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering DCs 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under DC 5260 (leg, limitation of flexion) and DC 5261 (leg, limitation of extension). Under DC 5260, limitation of knee flexion is 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under DC 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. DC 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. Id. The words “slight,” “moderate,” “severe,” and “marked” as used in the various DCs are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” Id. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Marked” means having a distinctive or emphasized character. Under DC 5256, ankylosis of the knee that is in the favorable angle in full extension, or is in slight flexion between 0 degrees and 10 degrees, warrants a 30 percent disability rating. Ankylosis of the knee in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating. Ankylosis of the knee in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more, warrants a 60 percent rating. A 60 percent rating is the maximum schedular disability rating available under DC 5256. Id. Ankylosis is the immobility and consolidation of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992). DC 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of “locking,” pain, and effusion into the joint. DC 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under DC 5263 when genu recurvatum is identified. 38 C.F.R. § 4.71a. DC 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. DC 5003 provides that degenerative arthritis established by x-ray findings is to be evaluated on the basis of limitation of motion under the appropriate DC for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 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, a 10 percent rating is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Factual Background VA Medical Center (VAMC) treatment records from July 2010 through September 2010 documents intermittent reports of right knee pain which was noted to be “marked” with patellar tenderness. There were reports of no right knee pain interspersed in various treatment records during this period. October 2010 through December 2010 treatment records document constant right knee pain that radiates down the right and left leg and swelling. On January 2011 VA authorized examination, the Veteran reported flare-ups as often as once per day that each last for 24 hours with pain ranging from 1 to 10. The functional impairment during flare ups were described as an inability to run, squat, kneel or jump on the right leg, weakness and numbness of the leg after driving longer distances in addition to limitation of motion of the joint which was described as very painful. Difficulty standing/walking was also noted. Additional symptoms of numbness and cramping were also noted. Initial range of motion testing (ROM) showed right knee extension to 0 degrees and flexion to 110 degrees. Muscle strength testing for the right leg was indicated to be 4 out of 5. Examination of the right knee joints showed slight instability of the ACL and PCL ligaments, severe instability of the medial and lateral collateral ligaments as well as the medial and lateral meniscus. The effects of the Veteran’s right knee disability cause an inability to run or walk fast, she was noted to have lost her job as a special education aide. On January 2012 VA examination the Veteran indicated that she was not experiencing flare-ups and had no locking or giving way. Initial ROM testing showed extension to 35 degrees, with evidence of painful motion and flexion to 140 degrees. There was pain on palpation. Muscle strength and stability testing were normal. An April 2012 correspondence from a treating physician documents ongoing right knee pain which was opined to be permanent and prevents the Veteran from working. On December 2012 VA examination flare-ups were noted 3 to 4 times a year and lasting for a week. She relies on crutches for weight bearing activities and during flare-ups, symptoms are alleviated with time, rest and medication. Initial ROM testing showed extension to 0 degrees and flexion to 120 degrees. Functional loss/functional impairment of the right knee was less movement than normal and pain on movement. Muscle strength and joint stability tests were normal. Use of a brace with weight-bearing was noted. There was no additional limitation of range of motion with repetitive testing. July 2013 private orthopedic treatment records notes that the Veteran ambulates with a brace. ROM testing showed right knee extension was to 0 degrees and flexion to 138 degrees. Tenderness on the superior aspect of the patella was noted in addition to intermittent stinging pain. August 2012 to July 2013 private physical therapy orthopedic treatment records documents multiple ROM tests showing, at worst, right knee extension to 2 degrees and flexion to 100 degrees. These records intermittently document symptoms of pain on weight bearing and when not weight bearing. December 2012 to June 2014 VAMC treatment records documents constant right knee pain that is often sharp and shooting and is worse on weight bearing. The Veteran intermittently reported an inability to lift any weight or kneel. On October 2014 VA examination the Veteran reported symptoms of constant pain, buckling, pinching and difficulty with weight bearing. Initial ROM testing showed extension to 0 degrees and flexion to 120 degrees with painful motion beginning at 110 degrees. Additional functional loss/functional impairment after repetitive use was indicated with contributing factors of less movement than normal, incoordination, impaired ability to executed skilled movements smoothly, pain on movement, swelling, instability of station, disturbance of locomotion and interference with sitting. Pain on palpation of the right knee was noted. Muscle strength and joint stability testing was normal. The functional impact of the Veteran’s right knee symptoms was noted to be an inability to stand for more than 3 minutes, kneel, squat, run, jump or lunge. Private physical therapy treatment notes from August 2017 to July 2018 show symptoms of ongoing waxing and waning right knee pain. Functional limitation was noted when walking. ROM testing, at the worst, showed extension to 0 degrees and flexion to 110 degrees. On April 2019 VA examination the Veteran reported flare-ups of the right knee in the form of worsening stiffness and pain. Functional loss/impairment was subjectively reported with respect to squatting, twisting, lifting, pulling, and pushing which she is unable to do because of right knee pain. Initial ROM testing showed extension to 0 degrees and flexion to 110 degrees. There was evidence of pain with weight bearing and localized tenderness or pain on palpation of the joint. Pain was noted to limit functional ability with repeated use over a period of time, but no additional loss of ROM was indicated. Muscle strength and stability testing was normal. Analysis After careful review of the evidence, to include VA treatment, private orthopedic and physical therapy records, the Board finds that a higher rating is not warranted for the entirety of the period under appeal. A rating higher than 10 percent is not available under DC 5260. For the Veteran to be entitled to a rating of 20 percent under DC 5260, the evidence must show knee flexion limited to 30 degrees or less. Rather, all documented ROM testing has shown right knee flexion to 75 degrees or more. Regarding knee extension, the Board finds that from January 9, 2012 to December 27, 2012, the Veteran’s right knee disability warrants a 40 percent rating under DC 5261. During the January 9, 2012 VA examination, initial ROM testing documented limitation of extension to 35 degrees, which warrants a 40 percent rating under DC 5261. A higher rating is not warranted because ROM testing did not document right knee extension limited to 45 degrees. The December 2012 VA examination indicated ROM testing of extension to 0 degrees. Thus, there is no indication of a limitation of extension to 10 degrees or greater during any other portion of the relevant period. The Board acknowledges that the Veteran’s representative, in an April 2020 Informal Hearing Presentation, indicated that the examiner did not note that the Veteran utilizes a brace on her knee. However, the Board has considered such with regards to the disability rating considered herein. Thus, the Board finds that a 40 percent rating, but no higher, under DC 5261 for limitation of extension is warranted from January 9, 2012 to December 27, 2012. Finally, The Board also concludes that a rating in excess of 10 percent under DC 5257 for right knee laxity is not warranted. 2. Entitlement to a TDIU Legal Criteria A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.38 C.F.R. § 4.16 (a). 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 (a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Factual Background & Analysis The Veteran is service connected for an adjustment disorder, cellulitis, right knee laxity, left knee patellofemoral pain syndrome with degenerative arthritis, right knee patellofemoral pain syndrome, residuals of a right ankle sprain and a right knee scar. The Veteran has had a combined disability evaluation of 70 percent from June 14, 2011, at which point the Veteran was also in receipt of a 50 percent rating for an adjustment disorder. Accordingly, she meets the schedular percentage requirement for consideration of a TDIU under 38 C.F.R. § 4.16 (a) based on her service-connected disabilities. Therefore, the remaining question is whether the Veteran was unable to secure or follow a substantially gainful occupation because of these disabilities. The Board finds the overall evidence is persuasive that the Veteran is not capable of substantially gainful employment due to her service-connected disabilities. The Veteran’s April 2012 application for a TDIU reflects that she last worked as a special education teacher in June 2010. A May 2011 VAMC treatment note communicates that the Veteran’s right knee has caused “problems with jobs” because she can’t kneel or squat. A January 2012 VA psychological examination documents that the Veteran’s adjustment disorder related to her service-connected right knee disability causes an “inability to perform work duties.” In addition, an April 2012 physician’s correspondence explains that the Veteran’s right knee pain has not shown improvement and opines that her “condition is permanent, and she will not be physically able to work.” A recent April 2019 VA examination documented that the Veteran’s right knee disability impacts her ability to perform any type of occupational task, noting difficulty with squatting, twisting, lifting, pulling and pushing due to pain and weakness in the right knee. In the Veteran’s November 2014 substantive appeal (VA Form 9), she reported that she has difficulty sitting in a chair for hours and must elevate her legs in a recliner. She reported ongoing muscle spasms and numbness in both legs. In light of the foregoing, the Board finds that the evidence is at least in equipoise as to the matter of whether the Veteran is entitled to TDIU. The benefit of the doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.