Citation Nr: 20052292 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 16-52 078 DATE: August 6, 2020 ORDER Entitlement to a rating higher than 10 percent for degenerative joint disease (DJD) of the right knee (hereinafter “right knee condition”) is denied. Entitlement to a separate rating of 20 percent, but no higher, for dislocated semilunar cartilage with frequent episodes of pain, locking, and effusion into the joint due to service-connected right knee condition, is granted. REMANDED Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right knee condition was not characterized by flexion limited to 45 degrees or less, extension limited to 10 degrees or greater, recurrent subluxation, ankylosis, impairment of the tibia or fibula, or genu recurvatum. 2. There are right meniscal tears with effusion into the joint with frequent locking and pain. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 10 percent for right knee condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5260. 2. The criteria for a separate 20 percent rating, but no higher, for dislocated semilunar cartilage with frequent episodes of pain, locking, and effusion into the joint due to service-connected right knee condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to October 1983.This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript of which is attached to the claims file. In October 2019, the Veteran submitted additional medical evidence, which has been considered by the Board. This matter was previously before the Board in November 2019, when it was remanded for additional development. Right knee condition Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be considered in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. The Veteran’s right knee condition is rated under DC 5010-5260 for arthritis resulting in limitation of flexion. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. DC 5010, for arthritis due to trauma, provides for a maximum 10 percent rating for arthritis of a major joint, established by x-ray. Thus, a rating in excess of 10 percent is not available under DC 5010 alone. Under DC 5260, a rating of 10 percent is warranted when flexion is limited to 45 degrees; a rating of 20 percent is warranted when flexion is limited to 30 degrees; and a rating of 30 percent is warranted when flexion is limited to 15 degrees. A knee disability may also be rated under DC 5261 when there is evidence of limited extension. Under DC 5261 a rating of 10 percent is warranted for extension limited to 10 degrees; a rating of 20 percent is warranted for extension limited to 15 degrees; a rating of 30 percent is warranted for extension limited to 20 degrees; a rating of 40 percent is warranted for extension limited to 30 degrees; and a rating of 50 percent is warranted for extension limited to 45 degrees. In this case, the record does not contain evidence of limited extension warranting a compensable rating. Accordingly, DC 5261 is not applicable. A knee may also be rated under DCs 5256, 5259, 5262, and 5263 for ankylosis, removal of semilunar cartilage, impairment of the tibia and fibula, and genu recurvatum, respectively. In this case, the record does not contain evidence of such manifestations of the right knee disability. Accordingly, these diagnostic codes are not applicable. The Veteran’s right knee osteoarthritis is currently rated at 10 percent under diagnostic codes 5010-5260 for arthritis resulting in flexion limited to no less than 45 degrees. The evidence does not demonstrate symptoms that would warrant a rating in excess of 10 percent during the period on appeal. VA treatment records throughout the period on appeal noted ongoing symptoms of right knee pain especially with activity, tenderness, crepitus, moderate arthritis and occasional swelling, as well as the use of knee braces. During a March 2015 VA examination, the Veteran reported daily flare-ups lasting approximately two weeks and resulting in swelling, limited activity, aching, and a feeling like the knee will slip out of joint. He reported taking anti-inflammatories and frequent breaks. He reported he was unable to walk for longer than 30 minutes, bending over and squatting. Flexion was to 140 degrees with pain and extension was to 0 degrees with pain. Localized tenderness or pain on palpation of the joint was noted. No additional functional loss was noted after repetitive use testing. The examiner found no evidence that pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups and with repeated use over time. The examiner noted additional contributing factors of cramps. Muscle strength was 5/5, and there was no muscle atrophy. No history of recurrent subluxation, lateral instability or recurrent effusion were noted. The examiner noted that the Veteran had a meniscus condition, with frequent episodes of joint “locking” and joint pain. The Veteran used braces once a month. The examiner reported that the Veteran’s right knee impacted his ability to perform occupational tasks, specifically he could not squat or kneel down, walk stairs without pain or walk longer than 30 minutes without pain. A July 2015 MRI of the right knee showed an old tear of the medial meniscus with extensive degenerative changes and loss of volume; linear tear in the posterior horn of the lateral meniscus; moderate amount of joint effusion; and a moderate degree of degenerative osteoarthritic changes predominantly involving the medial compartment and patellofemoral articulation. During a November 2016 private knee and lower leg conditions disability benefits questionnaire (DBQ), the Veteran reported difficulty walking and performing daily activities, inability squatting and walking stairs and resting due to pain after a quarter of a mile. Flexion was to 100 degrees and extension was to 0 degrees. No additional functional loss was noted after repetitive use testing. Pain contributed to functional loss or additional limitation of range of motion. Tenderness or pain to palpation was noted over the patella. Repetitive movement caused more pain. No meniscus condition was noted. The Veteran regularly used a brace and occasionally used a cane. The examiner reported the Veteran needed a total knee replacement due to osteoarthritis. The examiner noted the Veteran worked at the post office, but he struggled with his job as he needed more frequent breaks due to pain. In October 2017, the Veteran went to his private primary care physician, Dr. D.P, with complaints of severe knee pain. The Veteran reported difficulty completing his work duties and a desire to retire on disability. Dr. D.P. indicated “it is reasonable considering the end-stage history of his knee pain,” as well as his belief that the knee conditions were “a permanent problem.” In a November 2017 letter, Dr. D.P., indicated the Veteran had received various treatments, including steroid injections, for severe osteoarthritis of the knees, with no pain relief. Dr. D.P. opined that the Veteran was disabled and unable to work due to his knee conditions. He noted the Veteran was unable to perform prolonged sitting, walking and lifting due to pain, and that these restrictions were permanent. See March 14, 2018 Medical Treatment Record-Non-Government Facility. During a July 2018 VA examination, the Veteran reported flare-ups while working as a minister and standing and sitting causes knee pain and swelling. He reported he could not drive, walk or stand for a prolonged time. Flexion was to 100 degrees with pain and extension was to 0 degrees with pain. Pain caused the decreased range of motion and functional loss. Crepitus and tenderness to palpation of the lateral knee was noted. No additional functional loss was noted after repetitive use testing. The examiner noted additional contributing factors of cramps. No history of recurrent subluxation, lateral instability or recurrent effusion were noted. The examiner noted that the Veteran had a meniscus condition, with no current symptoms, as well as soft tissue swelling of the knees. The Veteran regularly used a cane and constantly used braces for stability and pain control. The examiner reported that the Veteran’s right knee impacted his ability to perform occupational tasks, specifically as he could not perform prolonged standing, walking or sitting; could not run or kneel; and should limit stairs and avoid ladders. During the September 2019 hearing, the Veteran testified that he had retired from the post office as a mail handler due to knee pain. He reported worsening pain and symptoms since the July 2018 VA examination. An October 2019 x-ray showed advanced bilateral knee tricompartmental osteoarthritis with multiple loose bodies and bilateral joint effusions. In October 2019, the Veteran submitted another knee and lower leg conditions DBQ, which noted his complaints of flare-ups resulting in swelling, increased pain, stiffness and cramping. Although the Veteran was unable to perform range of motion testing, the examiner indicated there was pain on range of motion movements that contributed to functional loss and additional limitation of range of motion. Tenderness was noted. The examiner estimated flexion was to 90 degrees due to pain and/or functional loss during flare-ups or with repeated use. The examiner noted slight recurrent subluxation and daily effusion, as well as a meniscus condition resulting in frequent episodes of joint pain and effusion. The Veteran occasionally used a cane. The examiner reported that the Veteran’s right knee impacted his ability to perform occupational tasks, specifically with regard to diminished stamina, range of motion and stability secondary to pain During a January 2020 VA examination, flexion was to 80 degrees with pain and extension was to 0 degrees. Crepitus was noted. No additional functional loss was noted after repetitive use testing. The examiner found that pain significantly limited functional ability with flare-ups and with flare-ups. Although the examiner was unable to describe in terms of range of motion, the examiner indicated the Veteran could walk, but with severe pain. No history of recurrent subluxation, lateral instability or recurrent effusion were noted. No meniscus condition was noted. The Veteran occasionally used braces and a cane. The examiner reported that the Veteran’s right knee impacted his ability to perform occupational tasks, specifically he could not squat or kneel down, walk stairs without pain or walk longer than 30 minutes without pain. Upon review of the evidence, the Board finds that the evidence does not support ratings in excess of 10 percent for right knee degenerative joint disease based on limitation of flexion. The Board notes that although the Veteran did not meet the minimum criteria for 10 percent evaluations under DC 5260 because flexion was not limited to at least 45 degrees, the RO nevertheless assigned ratings of 10 percent for the right knee based upon painful motion of the knee with x-ray evidence of arthritis. See 38 C.F.R. § 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Throughout the period on appeal, the evidence does not suggest that the Veteran’s right knee condition is so disabling as to approximate the level of impairment required for the assignment of a rating higher than 10 percent for limitation of flexion of the knee. As the overall evidence does not show that the Veteran’s right knee limitation of flexion has more nearly approximated 30 degrees at any time during the appeal period, even when considering the functional limitations with flare-ups and repeated use over time. See 38 C.F.R. § 4.71a, DC 5260. The Board will consider whether a separate rating is warranted in this case under DC 5257 (recurrent subluxation or lateral instability). 38 C.F.R. § 4.71a. Although the private October 2019 DBQ noted slight recurrent subluxation, no other VA examination during the appeal period noted such. In fact, joint stability test results of the October 2019 DBQ were normal. Additionally, the VA examiners in March 2015, July 2018 and January 2020 marked “no” for history of recurrent patellar subluxation/dislocation. Review of VA treatment records also do not show clinical findings of recurrent subluxation or lateral instability of the right knee. As a result, a separate rating for recurrent subluxation or lateral instability of the right knee is not warranted under DC 5257. However, the Board does note that the March 2015 VA examiner found frequent episodes of locking and pain, and a July 2015 MRI showed meniscal tears with effusion. The Board will afford the Veteran the benefit of the doubt and grant a separate evaluation of 20 percent, under DC 5258, for dislocated semilunar cartilage with frequent episodes of locking, pain and effusion. REASONS FOR REMAND TDIU The issue of entitlement to a TDIU is remanded for referral to the VA Director of the Compensation Service for adjudication of TDIU eligibility in accordance with 38 C.F.R. § 4.16(b). In this case, the Veteran contends that he has been unemployable due to service-connected disabilities. The Veteran has testified that he stopped working as a post office mail handler due to his service connected right knee condition and psychiatric condition. The Veteran’s only service-connected conditions are adjustment disorder with depressed mood, rated at 30 percent, and right knee condition, rated at 10 percent and a separate 20 percent. There is evidence of record, including VA and private examination reports discussed above, suggesting that the service-connected right knee condition may have rendered the Veteran unemployable during the period at issue. However, there is also evidence that the Veteran worked as a minister and post office mail handler during the appellate period. See e.g., March 2018 Medical Treatment Record–Non-Government Facility and September 2019 Board Hearing. Because the Veteran’s past work experience involved prolonged periods of standing and required at least some physical exertion, the symptoms and functional impairment caused by service-connected right knee condition may have significantly impacted the ability to secure or maintain substantially gainful employment during the TDIU rating period. Because the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are not met at any time during the TDIU rating period on appeal, the issue of entitlement to a TDIU should be remanded for referral to the VA Director of the Compensation Service for adjudication of TDIU eligibility in accordance with 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the case to the VA Director of the Compensation Service for adjudication of entitlement to a TDIU (See 38 C.F.R. § 4.16(b)). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Norwood, Associate 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.