Citation Nr: 21000169 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-05 692 DATE: January 4, 2021 ORDER Entitlement to a rating in excess of 30 percent for residuals of left total knee replacement associated with degenerative joint disease (hereinafter left knee disability), prior to December 9, 2019, is denied. Entitlement to a rating in excess of 60 percent for a left knee disability, from December 9, 2019 forward, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Prior to December 9, 2019, the Veteran’s left knee disability was not manifested by severe painful motion or weakness, ankylosis, significant loss of extension, or impairment of the tibia and fibula 2. Since December 9, 2019, the Veteran’s left knee disability has been manifested by chronic residuals consisting of severe painful motion and weakness. 3. The claim for a TDIU is moot as of August 20, 2013, and the evidence of record prior to that time 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. Prior to December 9, 2019, the criteria for a rating in excess of 30 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5055. 2. From December 9, 2019, the criteria for a rating in excess of 60 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5055. 3. The criteria for a TDIU, prior to August 20, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1954 to July 1958 and from February 1960 to January 1962. The matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal for additional development in September 2017 and July 2019. The Board finds that the RO has substantially complied with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Notably, the Veteran did not submit the requested VA Form 21-4142 seeking authorization to contact any private providers or VA Form 21-8940, Application for Increased Compensation Based on Unemployability. See September 2017 VA correspondence; October 2019 VA correspondence. Accordingly, as there has been substantial compliance with the Board’s remand directives, the Board may proceed with appellate review.   Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). 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. 38 C.F.R. § 4.27. The Veteran seeks an increased rating for his service-connected left knee disability, rated as 30 percent disabling prior to December 9, 2019, and 60 percent disabling thereafter pursuant to Diagnostic Codes 5010-5055. As higher ratings are available only under Diagnostic Code 5055, the Board will focus on that analysis. Under Diagnostic Code 5055, a 30 percent rating is the minimum possible rating assignable. A 60 percent rating is warranted for a total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 100 percent rating is warranted for the one year following implantation of the prosthesis. Intermediate degrees of residual weakness, pain, or limitation of motion (a level of disability in between those contemplated by the 30 and 60 percent ratings) are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5256, ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent rating. Ankylosis of the knee in flexion between 10 and 20 degrees warrants a 40 percent rating. Ankylosis of the knee in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more warrants a 60 rating. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Diagnostic Code 5261 evaluates limitation of extension as follows: extension limited to 5 degrees warrants a noncompensable rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating. Malunion of the tibia and fibula with moderate knee or ankle disability warrants a 20 percent rating. Malunion of the tibia and fibula with marked knee or ankle disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5262. In a June 2012 correspondence, the Veteran’s private orthopedic surgeon, Dr. E.M., reported that the Veteran had persistent weakness in the left lower extremity. He opined that given his back problems, decreased mobility and chronic problems with weakness in the left lower extremity he has been limited in his activities, making him unable to return to functional gainful employment since 2006. The Veteran was afforded another VA examination in July 2013. The Veteran reported flare-ups, which he described as chronic, daily pain with walking more than 20 to 30 minutes. Upon examination, the Veteran’s left knee revealed flexion to 110 degrees, with objective evidence of painful motion at 90 degrees, and extension to 0 degrees. No additional loss of function or range of motion was noted after repetitive-use testing. The examiner noted that the Veteran’s left knee had pain on movement, swelling, and less movement than normal. No tenderness or pain to palpation, reduction in muscle strength, instability, recurrent patellar subluxation/dislocation, or tibial and/or fibular impairment were noted during the examination. The examiner indicated that the Veteran did not use any assistive device as a normal mode of locomotion. The examiner noted that the Veteran worked as a boilermaker for approximately two years and as a federal prison corrections officer for approximately four years. The examiner further noted that the Veteran stopped working in 1972, after injuring his back while on duty at the prison. The examiner opined that the Veteran’s bilateral knee disability impacts his ability to work as his conditions limit heavy lifting. The examiner indicated that light duty or sedentary duty was not prohibited. A December 2013 VA treatment note revealed that the Veteran reported left knee giving way and the use of a cane to ambulate. In a November 2013 correspondence, Dr. E.M. reported that the Veteran has had chronic aching discomfort and weakness in the left knee as well as giving way, instability, and pain. He indicated that the Veteran walks with a cane or a walker secondary to left knee pain, weakness, and sense of instability. He opined that the Veteran was unemployable on the basis of chronic pain, weakness instability, and poor ability to ambulate given his left knee and leg problems. He reasoned that the Veteran cannot stand for extended periods of time, walk extended distances, or carry heavy objects. The Veteran underwent a VA examination in February 2014. He did not report any flare-ups. Upon examination, the Veteran’s left knee revealed flexion to 100 degrees, with pain, and extension to 5 degrees, with no objective evidence of painful motion. Repetitive-use testing revealed left knee flexion to 110 degrees and extension to 5 degrees. The examiner noted left knee pain on movement and less movement than normal. The examiner opined that pain, weakness, fatigability, or incoordination do not significantly limit functional ability during flare-ups or with repeated use over a period of time. The examiner reasoned that the Veteran’s pain would not cause further loss of range of motion but would require rest. The examiner noted left knee tenderness. No muscle strength reduction, instability, history of recurrent patellar subluxation/dislocation, tibial and/or fibular impairment, or ankylosis were noted during the examination. The examiner noted that the Veteran did not require the use of any assistive device as a normal mode of locomotion. The examiner opined that the Veteran’s knee conditions impact his ability to work, noting ability to lift 10 pounds occasionally, walk one block at one time, walk two hours during an eight hour day, stand for 30 minutes, stand for one hour during an eight hour day, and sit for an unlimited amount of time. The Veteran was afforded another VA examination in October 2017. The Veteran reported flare-ups with prolonged standing, walking, climbing and descending stairs, and strenuous physical activity. He reported that his flare-ups are relieved/improved with rest. The examiner further indicated that the Veteran reported occasional swelling with prolonged standing or walking and denied weakness or knee instability. Upon examination, the Veteran’s left knee revealed flexion to 95 degrees, with pain, and extension to 0 degrees. The examiner noted that pain and range of motion noted during the examination itself did not contribute to functional loss. No additional loss of function or range of motion was noted after repetitive-use testing. The examiner opined that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over a period of time. Regarding flare-ups, the examiner opined that he was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups as the examination was not conducted during a flare-up. Left knee muscle strength testing revealed 4/5 strength for flexion and 5/5 strength for extension. No muscle atrophy, ankylosis, recurrent subluxation, lateral instability, or tibial and/or fibular impairment were noted during the examination. Joint stability testing revealed normal results. The examiner noted intermediate degrees of residual weakness, pain, or limitation of motion as well as swelling. The examiner also noted occasional use of a cane and walker for ambulation. The examiner opined that the Veteran’s knee conditions impact his ability to work as work restrictions may include avoidance of prolonged exertion, no heavy lifting, or heavy carrying of excess poundage. The examiner further opined that the Veteran’s knee disabilities render him from being gainfully employed in heavy duty occupations but do not prohibit gainful employment from light duty or desk-job occupations. The Veteran was afforded a VA examination in December 2019, in which he reported daily left knee pain rated 6/10 and some swelling. The Veteran denied flare-ups of the left knee, reporting that his symptoms are more continual rather than occurring during a flare. He reported having functional loss or functional impairment of the joint that makes prolonged standing or walking difficult. Upon examination, the Veteran’s left knee revealed flexion to 110 degrees, with pain, and extension to 0 degrees. The examiner indicated that pain noted during the examination itself did not contribute to functional loss. No additional loss of function or range of motion was noted after repetitive-use testing. The examiner opined that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over a period of time. No evidence of crepitus, localized tenderness or pain on palpation of the joint, reduction in muscle strength, muscle atrophy, ankylosis, recurrent subluxation, lateral instability, tibial and/or fibular impairment, or recurrent effusion were noted during the examination. The examiner noted chronic residuals consisting of severe painful motion or weakness. The examiner further indicated that the Veteran regularly uses a cane for his bilateral knee, lumbar spine, and hip conditions. The examiner opined that the Veteran’s knee disabilities impact his ability to perform occupational tasks due to difficulty with prolonged standing, squatting, kneeling, climbing, or sitting without breaks. The examiner noted that the Veteran worked as a boiler technician and as a corrections officer. The examiner further noted that the Veteran has been unemployed since 2007. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent prior to December 9, 2019, and a rating in excess of 60 percent thereafter for the Veteran’s left knee disability. In evaluating the medical evidence prior to December 9, 2019, the Board finds that a rating in excess of 30 percent for the Veteran’s left knee disability is not warranted by analogy under Diagnostic Codes 5256, 5261, or 5262. At no point during the appeal period did the Veteran’s left knee demonstrate a compensable degree of limitation of extension (10 degrees or more). Additionally, there is no evidence of ankylosis or nonunion of the tibia and fibula. Similarly, the lack of a compensable degree of limitation of flexion or extension argues against a finding that the Veteran’s residuals were severe as to warrant a 60 percent rating under Diagnostic Code 5055. The July 2013 and February 2014 VA examiners noted no reduction in left knee muscle strength. Additionally, the October 2017 VA examiner noted 4/5 strength as to left knee flexion and 5/5 strength as to left knee extension. Additionally, the October 2017 VA examination report described the Veteran’s left knee replacement residuals as no worse than consistent with intermediate degrees of residual weakness, pain, or limitation or motion. The Board acknowledges the Veteran’s reports of left knee instability. Despite the Veteran’s reports of feelings of instability, stability testing has consistently found the Veteran’s knee stable. Considering this evidence, the Board does not find a basis for a higher rating under Diagnostic Code 5055 based on this evidence. The described pain, weakness, and limitation of motion are accounted for by the 30 percent rating. Moreover, based on a review of the evidence of record, the Board finds that a rating in excess of 60 percent for the Veteran’s left knee disability is not warranted, from December 9, 2019 forward. The Board further finds that this is the first date that the evidence showed entitlement to this higher rating. As noted above, a 60 percent rating is the highest rating available under Diagnostic Code 5055, absent the year following implantation of prosthesis. The Board finds that this rating contemplates the Veteran’s left knee symptoms in full. There is no other symptom or other diagnostic code under which to assign a higher rating. Furthermore, the Board recognizes that the Veteran has scars associated with his left knee total knee replacement; however, as indicated in the VA examination reports, the scars are not painful or unstable. Additionally, the record does not suggest that the scars limit the motion of the affected joints, or cover an area exceeding 39 square centimeters. Therefore, a compensable rating for surgical scars is not warranted at this time. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. In sum, the Board finds that a rating in excess of 30 percent prior December 9, 2019, and a rating in excess of 60 percent thereafter is not warranted for the Veteran’s left knee disability. Accordingly, as the preponderance of the evidence is against the claim for increased rating, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to a TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a claim for a TDIU, the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). TDIU 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 an additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In some cases, but not all, the assignment of a total schedular rating renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The veteran may receive a total (100 percent) rating based on a combination of his service-connected disabilities, or for a single service-connected disability. Special monthly compensation (SMC) may be warranted in addition to his regular compensation if the veteran has a total disability rating for a single disability, and additional service-connected disability or disabilities rated at 60 percent or more. The total rating for the single disability for SMC purposes may be schedular, or may be based on TDIU, so long as TDIU was granted solely because of that single disability. Thus, if the veteran’s total rating is based on a combination of his service-connected disabilities, (which by definition would mean that his individual service-connected disabilities are each rated at less than 100 percent), then TDIU is not moot if it could be granted on a single disability, in turn making the veteran eligible for SMC. If, however he has a single disability already rated at 100 percent, entitlement to TDIU becomes moot, because he has already met that portion of the requirement for SMC. Here, the issue of TDIU is moot as of August 20, 2013, based on the grant of statutory housebound SMC, pursuant to 38 U.S.C. § 1114(s). Accordingly, as the Veteran has already been awarded SMC on this basis and would have no need to establish a TDIU rating in order to qualify for statutory housebound SMC, the holding of Bradley is not applicable and any TDIU claim is moot as of August 20, 2013. The Board will now turn to the issue of TDIU prior to August 20, 2013. Prior to that date, the Veteran’s meets the criteria for schedular TDIU when considering the bilateral factor for the Veteran’s bilateral knee disabilities. Thus, the remaining inquiry is whether the Veteran’s service-connected disabilities precluded employment prior to August 20, 2013. In July 2019, the Board remanded the claim for additional development. Specifically, as noted above, the Agency of Original Jurisdiction (AOJ) sent a letter to the Veteran in October 2019 asking him to complete a VA Form 21-8940. The Veteran failed to respond to the letter, did not submit a completed VA Form 21-8940, and has not otherwise provided any information pertaining to his employment history, training, or education. Hence, VA’s duty to assist has been satisfied regarding the TDIU claim, and the issue shall be adjudicated based on the evidence of record. The Board notes that the claims file contains conflicting evidence as to the Veteran’s work history. The July 2013 VA examination report indicated that the Veteran last worked as a correctional officer in 1972. However, the December 2019 VA examination report indicated that the Veteran last worked in 2007 as a corrections officer. The evidence of record does not show that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities for the period in question. While the evidence shows that the Veteran’s asbestosis and bilateral knee disabilities have occupational impacts on the Veteran’s ability to stand, walk, and sit for prolonged periods of time, as well as his ability to lift heavy objects, there is no evidence that the Veteran would be unable to maintain substantially gainful employment in an occupation with limited physical duties. Thus, the preponderance of the evidence supports a finding that there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable. While the Veteran’s service-connected disabilities have resulted in some functional impairments, the evidence does not indicate that he is unable to secure or follow any substantially gainful occupational due solely to his service-connected disabilities. A claimant bears the burden of presenting and supporting a claim for benefits. See 38 U.S.C. § 5107(a). The duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, potentially relevant evidence that could have been provided by the Veteran through the filing of VA Form 21-8940, such as his full employment history, any training or education undertaken since becoming disabled, and the specific circumstances under which he left prior employment, was not available. Without further information, the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.