Citation Nr: 20046774 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 08-31 815 DATE: July 13, 2020 ORDER Entitlement to a disability rating in excess of 20 percent prior to January 25, 2008, for posttraumatic arthritis of the left knee based on limitation of extension is denied. Entitlement to a disability rating in excess of 40 percent between January 25, 2008, and January 10, 2012, for posttraumatic arthritis of the left knee based on limitation of extension is denied. Entitlement to a disability rating in excess of 20 percent from January 11, 2012, for posttraumatic arthritis of the left knee based on limitation of flexion is denied. Entitlement to an initial disability rating of 20 percent for instability of the left knee due to chondromalacia associated with posttraumatic arthritis of the left knee is granted. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to January 25, 2008, the Veteran's left knee was limited to 15 degrees of extension. 2. From January 25, 2008 to January 10, 2012, the Veteran's left knee was limited to 30 degrees of extension. 3. From January 11, 2012, the Veteran's left knee was limited to 40 degrees of flexion. 4. Throughout the entire period on appeal, the Veteran has had moderate instability of the left knee. 5. The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to January 25, 2008, the criteria for a rating in excess of 20 percent for a left knee disorder based on limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 2. Between January 25, 2008, and January 10, 2012, the criteria for a rating in excess of 40 percent for a left knee disorder based on limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 3. From January 11, 2012, the criteria for a rating in excess of 20 percent for a left knee disorder based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 4. During the entire period on appeal, the criteria for an increased rating of 20 percent for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 5. The criteria for a TDIU are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1986 to January 1993. Increased Ratings 1. Entitlement to a disability rating in excess of 20 percent prior to January 25, 2008, for posttraumatic arthritis of the left knee based on limitation of motion 2. Entitlement to a disability rating in excess of 40 percent between January 25, 2008, and January 10, 2012 for posttraumatic arthritis of the left knee based on limitation of motion 3. Entitlement to a disability rating in excess of 20 percent from January 11, 2012, for posttraumatic arthritis of the left knee based on limitation of motion 4. Entitlement to an initial disability rating in excess of 10 percent for left knee chondromalacia associated with posttraumatic arthritis of the left knee, manifest as instability Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). Where there is a question as to which of two 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 (2019). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found-a practice known as “staged” ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, 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 diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under Diagnostic Code 5014, osteomalacia will be rated as degenerative arthritis, based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involves is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affect by limitation of motion. Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. The Veteran is presently assigned a staged rating for his left knee disorder under Diagnostic Code 5259-5257 and a separate 10 percent rating under Diagnostic Code 5014. The Veteran filed a claim for an increased rating for his left knee disorder in February 2007. The Veteran underwent a VA examination in April 2007. The Veteran reported pain, weakness, stiffness, and swelling. He also stated that his knee gave way and he had a lack of endurance and fatiguability. He wore a knee brace for support. A physical examination showed range of motions was from 15 of extension to 75 degrees of flexion, with pain on both ends. After repetitive use, he was additionally limited by pain, but no additional loss of motion. Joint stability tests were normal. The Veteran diagnosis was left knee strain and the effect on his usual occupation was noted to be minimal. A May 2007 treatment record shows the Veteran underwent left knee arthroscopy, arthroscopic chondroplasty patellofemoral articulation and lateral compartment. A December 2007 rating decision assigned the Veteran a temporary 100 percent rating beginning March 23, 2007, and a 20 percent rating beginning July 2, 2007. The Veteran disagreed with this rating. VA treatment records in January 2008 showed range of motion of the left knee was limited to 30 degrees of extension and 90 degrees of flexion with no instability. At a January 2012 VA examination, the VA examiner noted a diagnosis of left knee meniscus, anterior cruciate ligament (ACL) and medial collateral ligament (MCL) tear, status post surgery with degenerative joint disease. The Veteran reported pain at 10/10 that varied in frequency and could last up to 8 hours in duration. He used a left knee brace and cane and was able to walk 10 to 15 feet. He experienced flare-ups that precluded walking or standing until the pain subsided. Range of motion testing showed flexion limited to 40 degrees with pain at 40 degrees but full extension. The Veteran was able to perform repetitive use testing with no additional limitations. Functional loss was due to pain, instability, disturbance of locomotion, less movement than normal, and interference with sitting, standing, and weight-bearing. Muscle strength testing was normal. Joint stability tests showed 1+ anterior instability. There was no evidence of recurrent patellar subluxation or dislocation or tibial or fibular impairment. Regarding meniscal conditions, the examiner noted a meniscal tear and meniscectomy, with no residual symptoms. Finally, the examiner opined that the Veteran's left knee disorder impacted his ability to work as “due to left knee pain, he has difficulty with walking, bending, standing.” The Veteran appeared at a Board hearing in August 2012. He testified that he experienced pain, swelling, and limited function due to his knee disorder. He stated that he was limited in walking, bending, and lifting. He also reported being issued a brace for stability as his knee constantly slipped in and out and gave out causing falls. In December 2013, the Board remanded the Veteran's claims for additional development, including a VA examination. In a March 2014 pain assessment, the Veteran reported intermittent pain with movement that affected his general activity. A VA examination was conducted in May 2014. The examiner noted a current diagnosis of “torn medial meniscus and ACL affecting the left side.” The following measurements were noted: flexion to 40 degrees and full extension to 0 degrees. The Veteran was unable to perform “repetitive-use testing” because of pain. Functional impairment was described as less movement than normal, weakened movement, pain on movement, and disturbances of locomotion on the left knee. The Veteran had 1+ for anterior instability. Medial lateral and posterior instability were reported as normal. The Veteran used braces and canes on a regular basis. Functional impairment on the Veteran's ability to work was described as “Prolonged standing and walking are to be avoided.” Regarding Mitchell criteria, the examiner opined “It is my opinion that there will be increased loss of left knee function after repetitive use in future flare-ups secondary to pain. The degrees lost is speculative.” In a June 2014 statement, the Veteran's wife stated that she has witnessed the Veteran's knee pain for 20 years. She reported that it is difficult for him to walk, he winced in pain, and she had seen him fall going up or down the stairs. The Veteran underwent a VA examination in November 2017. The examiner noted diagnoses of bilateral meniscal tears and degenerative joint disease and a knee ACL tear and chondromalacia of the left knee. The Veteran reported symptoms of pain, popping, and giving away. He stated that he experienced flare ups with prolonged standing, walking, and using stairs. Functionally, the Veteran was unable to run or squat. Range of motion testing showed 0 to 75 degrees of flexion. The Veteran was able to perform repetitive use testing with no additional limitations. There was evidence of pain with weight bearing and objective evidence of crepitus. The examiner also stated that pain significantly limited functional ability with repeated use over a period of time and with flare ups. Additional contributing factors of disability include less movement than normal, disturbance of locomotion, and interference with standing. Muscle strength testing was normal with no atrophy. Joint stability testing showed no instability. The Veteran had no tibial or fibular impairment. His meniscal condition caused frequent episodes of joint pain and he regularly used a brace and cane for ambulation. Regarding impact on employment, the examiner stated that the Veteran had difficulty with prolonged standing or walking and with navigating stairs. Upon review of the evidence of record, the Board finds that the higher ratings based on limitation of motion are not warranted. However, the Board finds that the assigned Diagnostic Codes do not accurately reflect the Veteran's disabilities. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). It is permissible to switch Diagnostic Codes to reflect more accurately a claimant’s current symptoms. See also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the Diagnostic Code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Therefore, the Board has rated the Veteran's symptoms as described below. Regarding limitation of motion, prior to January 25, 2008, a 20 percent rating is warranted under Diagnostic Code 5261 for limitation of extension to 15 degrees. As the evidence did not show extension limited to more than 15 degrees, a higher rating under this diagnostic code is not warranted. The Board has also considered a rating under Diagnostic Code 5260, but the Veteran's flexion was not limited to 45 degrees or less for a compensable rating during that time period. From January 25, 2008, the Board finds that a 40 percent rating is warranted under Diagnostic Code 5261. The Veteran's extension of the left knee was limited to 30 degrees. The Board again considered a rating under Diagnostic Code 5260, but the Veteran’s flexion was limited to 90 degrees and not limited to 45 degrees or less for a compensable rating. From January 11, 2012, the Board finds that a 20 percent rating is warranted under Diagnostic Code 5260, as the Veteran's flexion was limited to 40 degrees at the January 2012 and May 2014 VA examinations. The same examination reports showed the Veteran had full extension and therefore, a compensable evaluation under Diagnostic Code 5261 was not appropriate. At no point since January 2012 has the evidence shown the Veteran's range of motion would warrant higher ratings based on limitation of flexion or extension. The Board has also considered whether the Veteran is entitled a separate rating for instability. The Veteran is presently in receipt of a 10 percent rating under Diagnostic Code 5014; however, as that Diagnostic Code is based on limitation of motion, it would constitute pyramiding to assign a separate rating under that Diagnostic Code in addition to the ratings noted above under Diagnostic Codes 5260 and 5261. However, the Board finds that the Veteran has symptoms of instability that are appropriately rated under Diagnostic Code 5257. Diagnostic Code 5257 provides the rating criteria for impairment of the knee manifested by recurrent subluxation and lateral instability. Under this Diagnostic Code provision, a 10 percent disability rating is warranted where there is slight recurrent subluxation or lateral instability of the knee. A 20 percent disability rating is warranted where the recurrent subluxation or lateral instability of the knee is moderate. The maximum 30 percent disability rating is warranted where there is severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Throughout the entire period on appeal, with resolution of the doubt in favor of the Veteran, the Board finds that the Veteran had moderate instability of the left knee. The Veteran consistently reported weakness, giving way, and falls due to instability. At the January 2012 and May 2014 VA examinations, the examiner noted mild anterior instability and the Veteran was also noted to use a brace and cane throughout the entire period on appeal. He also submitted a statement from his wife and provided testimony that he often fell as a result of his knee giving out. Therefore, a 20 percent rating for moderate instability is warranted. The Board does not find that severe instability has been shown. The April 2007 VA examination, January 2008 treatment record, and November 2017 VA examination showed no instability with normal objective findings upon joint stability testing. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. Although the Board is cognizant that objective medical evidence of lateral instability is not automatically more probative than lay evidence, here, the Board finds that the more probative evidence consistently shows evidence of moderate instability. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). For these reasons, the Board finds that a 20 percent rating for instability of the left knee is granted. The Board acknowledges that the Veteran has a meniscal condition but concludes that the Veteran’s symptoms do not reach to the level of the criteria contemplated for a rating of 20 percent under Diagnostic Code 5258. The evidence indicates that the Veteran experiences frequent episodes of pain and swelling, but there is no indication that he experienced frequent episodes of locking, as required to a rating of 20 percent. A separate rating of 10 percent under Diagnostic Code 5259 is also not warranted, as the Veteran’s pain is already compensated under Diagnostic Codes 5260 and 5261. There is no argument or indication that the Veteran has ankylosis, impairment of the tibia and fibula, or genu recurvatum, to warrant separate or higher ratings under any other diagnostic code applicable to the knees. Id., Diagnostic Codes 5256-5263. There is also no indication of circumstances for which the Veteran’s symptoms are the functional equivalent to the criteria for a higher rating under any applicable rating code. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995) The Board has considered the Veteran's lay statements regarding his symptoms, including during flare up and after repeated use after time and finds the ratings assigned adequately reflect his symptoms. Therefore, higher ratings are denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 5. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Entitlement to a total rating must be based solely on the impact of a veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment. See 38 C.F.R. § 4.16(a). In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to show unemployability. A high rating in itself is recognition that the impairment makes it difficult to secure or follow employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19. 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. 38 C.F.R. § 4.16 (b). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Considering the above grant of a 20 percent rating for left knee instability, during the period on appeal, service connection has been in effect for the following: bilateral pes planus and plantar fasciitis, rated at 10 percent prior to September 25, 2018, and 50 percent beginning September 25, 2018; left knee limitation of motion, rated at 20 percent beginning July 1, 2007, 40 percent from January 25, 2008, to January 10, 2012, and 20 percent beginning January 11, 2012; left knee instability, rated at 20 percent; status post ruptured right achilles tendon, rated at 10 percent; cold urticaria, rated at 10 percent; and a left knee scar, rated as noncompensable. Considering the bilateral factor, the Veteran’s combined rating is 60 percent beginning July 1, 2007; 70 percent beginning January 25, 2008; 60 percent beginning January 11, 2012; and 80 percent beginning September 25, 2018. See 38 C.F.R. §§ 4.25, 4.26. From January 25, 2008, to January 10, 2012, and beginning September 25, 2008, the Board finds that the Veteran satisfies the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for TDIU. Prior to January 25, 2008, and from January 11, 2012, to September 24, 2018, the Veteran does not meet the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for TDIU. However, it is VA’s policy to grant a TDIU in all cases where a service-connected disability or disabilities cause unemployability, regardless of the ratings for such disability or disabilities. 38 C.F.R. § 4.16(b). In this case, the evidence indicates that the Veteran completed college. He worked as a trainer for the Armed Force Benefit Association until July 2010. The Veteran stated that he was unable to continue working because his job required a lot of standing, walking, and bending, which was difficult after his third knee surgery. In a series of January 2020 VA opinions, the VA examiners opined that that the Veteran's service-connected left knee disorder, bilateral foot disorders, and status post ruptured right Achilles tendon limited his employability to sedentary work and that the Veteran's urticaria and scars did not restrict his job activities. Sedentary work was defined as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequent to lift, carry, push, and pull; sitting most of the time, but may involve walking or standing for brief periods of time; and walking and standing required only occasionally. (Continued on the next page)   After a thorough review of the claims file, the Board finds that the evidence does not show that the Veteran is unemployable due to his service-connected disabilities. Specifically, although the Veteran's feet and knee disabilities limit his ability to walk, stand, or bend for employment, sedentary employment was specifically noted to be possible. The Veteran has attended college and worked as trainer and therefore has the necessary skills and experience to perform sedentary work (as defined above). Although he experiences knee and foot pain and has limited range of motion, his combined 60, 70, and 80 percent disability ratings are, in and of themselves, acknowledgement that his service-connected disabilities impair his earning capacity. However, the Board does not find that his service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009). The most probative evidence weighs against finding that the Veteran was unable to secure and follow a substantially gainful occupation solely due to his service-connected disabilities. Therefore, the claim for TDIU is denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Sonja A. Mishalanie Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.