Citation Nr: 21000266 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-40 084 DATE: January 5, 2021 ORDER Entitlement to a disability rating greater than 10 percent for a right knee disability with painful motion during flexion is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied, and referral for extraschedular TDIU is not warranted. FINDINGS OF FACT 1. Throughout the claim period, the Veteran's limitation of motion relating to right knee disability with painful motion during flexion was not limited to 30 degrees or worse, to include consideration of functional loss during flare-ups. 2. The Veteran's service-connected disabilities did not preclude all substantially gainful employment for which his education and occupational experience would otherwise have qualified him. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating greater than 10 percent for right knee disability with painful motion during flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5024-5260. 2. The criteria for a TDIU were not met on a schedular basis and referral for extraschedular consideration was not warranted. 38 U.S.C. §§ 1155, 5107; 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 from November 1967 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 10 percent for symptomatic right knee meniscal tear. In October 2017 the Veteran filed a notice of disagreement (NOD) and in July 2018 the RO issued a statement of the case (SOC). In August 2018 the Veteran filed a substantive appeal (via VA Form 9). By way of history, in a June 2009 rating decision the RO granted the Veteran service connection for meniscal tear, right knee, symptomatic with an evaluation of 10 percent, effective January 12, 2005. He filed a claim for an increased rating in January 2017, asserting worsening symptoms. In a July 2019 decision, the Board denied a rating in excess of 10 percent for right knee disability. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans’ Claims (Court). In June 2020, while the matter was pending before the Court, the Veteran’s representative and VA’s General Counsel filed a joint motion for remand (JMR). In June 2020, the Court granted the parties’ motion, vacated the Board’s July 2019 decision which denied a rating in excess of 10 percent for the Veteran’s service-connected right knee disability and remanded the matter for action consistent with the JMR. In October 2020 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to provide the Veteran with a medical examination to determine the current severity of the Veteran’s right knee disability. As will be discussed below, the RO substantially complied with the October 2020 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In November 2020, the RO issued a supplemental statement of the case (SSOC). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where, as here, 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 1. Right knee disability The Veteran's right knee disability is currently rated 10 percent under 38 C.F.R. § 4.71a, DC 5024-5260. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. Separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004. DC 5024 applies to tenosynovitis and a note following that DC provides that it will be rated on limitation of motion of the affected part, as arthritis. Under DC 5260, a 10 percent rating is warranted if flexion is limited to 45 degrees; a 20 percent rating if limited to 30 degrees; and a maximum 30 percent rating if limited to 15 degrees. Under DC 5261, a noncompensable rating is warranted if extension is limited to 5 degrees; a 10 percent rating if limited to 10 degrees; a 20 percent rating if limited to 15 degrees; a 30 percent rating if limited to 20 degrees; a 40 percent rating if limited to 30 degrees; and a 50 percent rating if limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71; Plate II. At an October 2020 VA examination the Veteran reported he experienced pain on the lateral side of the right knee when walking distances or when stepping the wrong way. The VA examiner noted that the Veteran’s range of motion (ROM) was abnormal or outside of normal range and contributed to functional loss. ROM testing revealed flexion limited to 90 degrees and extension to 0 degrees. The VA examiner noted pain with ROM and weight-bearing with localized tenderness or pain on palpitation. His strength was normal at 5/5. He did not have muscle atrophy or ankylosis. The VA examiner found that the Veteran had a meniscal condition that caused frequent episodes of joint pain. The Veteran did not report flare-ups of the knee, however, the VA examiner estimated that the Veteran would have a significant functional limitation in terms of additional loss in ROM of the right knee during flare-ups and repeated use over time limited to 80 degrees of forward flexion due to pain. At the October 2020 VA examination the Veteran’s right knee extension measured normal at 0 degrees with no pain. The Veteran’s extension has been consistently normal at 0 degrees throughout the appeal period. Although the Veteran exhibited pain on extension at the January 2017 VA examination, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). 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. Id. at 38; see 38 C.F.R. § 4.40. Therefore, a separate rating under DC 5261 is not warranted. In the October 2017 NOD, the Veteran noted that in order for the 20 percent criteria to be met, his flexion had to be between 16 and 30 degrees. He stated that his flexion fell within this range. Although the Veteran is competent to state that he experiences decreased motion in his knee, he is not competent to state that his knee flexion fell between 16 and 30 degrees. The Veteran is not shown to have the expertise necessary to provide an accurate measurement for the ROM of his knee. See 38 C.F.R. § 4.46 (the use of a goniometer in the measurement of limitation of motion is indispensable). The Veteran’s assertion that his right knee flexion falls within the 16 to 30 degree range is less probative than the findings of the VA examiners, who conducted specific ROM testing. At worst, the Veteran is unable to flex his right knee beyond 90 degrees. Based on the Veteran’s flexion his disability rating is more closely described by the criteria for a noncompensable rating. At no point during the appeal period has the Veteran’s right knee flexion been limited to 60 degrees. Therefore, even when considering all of the ROM tests of record, the 10 percent rating criteria based on his flexion measurements are not met. However, a 10 percent rating was granted to compensate him for painful, limited motion under 38 C.F.R. § 4.59. The Board must also consider flare-ups and other factors such as pain on movement and interference with sitting, standing, and weight bearing. In accordance with the October 2020 Board remand, the October 2020 VA examiner was instructed to specifically describe the severity, frequency, and duration of any flare-ups, their effect on functioning, and precipitating and alleviating factors. The VA examiner was instructed to provide an estimate of additional loss of ROM, if any, during a flare-up or on repeated use over time. The parties agreed in the June 2020 JMR that the Board erred in finding that the VA’s duty to assist had been satisfied because the January and July 2017 examination reports were inadequate as the VA examiners failed to provide an opinion regarding the extent of functional loss during flare-ups in accordance with Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017) and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Board is cognizant of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), which held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. The Veteran did not report flare-ups and therefore the October 2020 VA examination is compliant with Sharp v. Shulkin because an opinion contemplating flare-ups is not required when the Veteran does not report flare-ups. Regardless, the October 2020 VA examiner did provide an opinion contemplating flare-ups and complied with the October 2020 Board remand instructions. Prior to the October 2020 VA examination, the Veteran indicated that he experienced flare-ups which caused him intense pain and made it difficult to walk, as indicated on the July 2017 VA examination report. The October 2020 VA examiner estimated that with flare-ups the Veteran’s ROM would end at 80 degrees and there is no evidence that the Veteran’s flare-ups and symptoms caused additional loss of motion resulting in limitation of motion. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of 38 C.F.R. § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). For the foregoing reasons, the preponderance of the evidence is against an increased rating greater than 10 percent for the Veteran’s right knee disability with painful motion. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As instructed in the June 2020 JMR, the Board must also consider whether the Veteran is entitled to a separate rating under DC 5258, which provides a 20 percent rating for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. The Veteran is currently rated under DC 5257 for instability, however, rating a knee disability under DC 5257, 5260, or 5261, does not preclude the assignment of a separate rating for a meniscal disability of the same knee under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017). The JMR found that that in denying a separate rating under 38 C.F.R. § 4.71a, DC 5258 the Board did not consider an April 2009 VA examination report in which the Veteran related experiencing joint effusion and locking. As the evaluation of the Veteran’s right knee disability was remanded for a new VA examination, the Board deferred a decision on the issue at that time. An April 2009 VA examination report reflects that the Veteran experienced joint effusion and locking. However, since that time the Veteran has undergone three VA examinations in January and July 2017 and October 2020 and none of the VA examiners noted that the Veteran experienced joint effusion or locking. Additionally, none of the Veteran’s VA treatment records note any instances of joint effusion or locking. Although there is one episode of joint effusion and locking in the Veteran’s medical records, he has not provided any statements that he experiences these symptoms. Thus, the Veteran’s symptoms do not nearly approximate the criteria under DC 5258 which require frequent episodes of joint effusion and locking, defining frequent as more than once. Lastly, the Veteran did not have removal of the semilunar cartilage and there is no evidence of any knee ankylosis, impairment of the tibia or fibula, or genu recurvatum at any time during the claim period. Therefore, separate ratings are not warranted under DCs 5256, 5259, 5262, or 5263 at any time during the claim period. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran is currently in receipt of service connection for major depressive disorder with psychotic features, tinnitus, right knee disability with flexion and instability, sinusitis, bilateral hearing loss, allergic rhinitis, and tension for a 50 percent rating. Thus, the Veteran has not met the percentage requirements under 38 C.F.R. § 4.16(a). Nonetheless, VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude substantially gainful employment, regardless of the percentage ratings. See 38 C.F.R. § 4.16(b). Thus, the Board must determine whether the evidence indicates that the Veteran's service-connected disabilities, alone, preclude substantially gainful employment consistent with his education and occupational experience at any time during the claim period. If so, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance, and must, instead, remand the claim for referral to the Director of Compensation Service for consideration of the Veteran's entitlement to an extra-schedular rating. See Bowling v. Principi, 15 Vet. App. 1 (2001). In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." For the following reasons, that standard has not been met in this case. In the October 2020 remand, the Board instructed the RO to ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) and to report his education and employment history and earnings. In October 2020, the RO sent a letter to the Veteran and asked him to complete VA Form 21-8940, which would provide his educational background, employment history and earnings. A copy of VA Form 21-8940 and detailed instructions for the Veteran were included with the letter. The Veteran did not submit VA Form 21-8940 and has not otherwise provided any information pertaining to his educational background, employment history, or earnings. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street). The degree to which the Veteran's ability to work may be impacted by his service-connected disabilities is unclear without the VA Form 21-8940 and information regarding his education, employment history, or earnings. Under 38 U.S.C. § 5107(a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Veteran has not done so in this case. For the foregoing reasons, the preponderance of the evidence reflects that the functional impairment from the Veteran's service-connected disabilities has not been shown to be so severe as to preclude substantially gainful employment. Therefore, the record does not contain sufficient evidence to substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities. Accordingly, the criteria for remanding this matter for referral for extraschedular consideration are not met. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.