Citation Nr: 21001853 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 13-10 385 DATE: January 12, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee traumatic arthritis with limited motion is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), prior to July 28, 2016 is remanded. FINDING OF FACT The Veteran’s left knee disability did not manifest flexion limited to 30 degrees or limitation of extension limited to at least 5 degrees, including on consideration of pain on use and painful flare-ups. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the Veteran’s left knee traumatic arthritis with limited motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5256-5263. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1976 to January 1985. This appeal arises from a May 2012 rating decision, denying an increased rating claim for a rating in excess of 10 percent for the Veteran’s service-connect left knee traumatic arthritis with limited motion. This appeal also arises from a December 2016 rating decision, which awarded a TDIU, effective from July 28, 2016. This case was previously before the Board in December 2015, September 2018 and April 2020, when the Board remanded these issues to the AOJ for additional development and consideration. By history, in September 2018, the Board found that the AOJ improperly reduced the rating for left knee internal derangement with chondromalacia and restored a 10 percent evaluation in light of manifestations of left knee instability. The Board also found that the Veteran’s temporary total evaluation of 100 percent, for left knee traumatic arthritis with limited motion, was properly reduced to 10 percent, effective October 1, 2010. Thus, these issues are no longer before the Board. The file is again before the Board for further appellate review. 1. Entitlement to a rating in excess of 10 percent for left knee traumatic arthritis for limitation of flexion is denied. The Board will review the evidence of record since June 6, 2010, which is one year before the June 6, 2011 increased rating claim was filed. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). The Veteran’s left knee disability has been analogously rated at 10 percent during this period under DCs 5010 (traumatic arthritis) and DC 5260, for limitation of flexion of the leg. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. VA’s General Counsel has stated that separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). “Although pain may cause a functional loss, pain itself does not constitute functional loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (emphasis in original). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for his left knee disability for limitation of flexion, under DC 5260. At the August 2011 VA examination, the Veteran demonstrated left knee active flexion to 80 degrees with objective evidence of pain. At the January 2012 VA examination, the Veteran demonstrated left knee flexion limited to 75 degrees due to objective evidence of pain on motion. At the May 2015 VA examination, the Veteran demonstrated left knee flexion to 125 degrees flexion, without pain noted on exam, and there was no additional limitation of motion on repetitive use, repetitive use over time, or flare-ups. At the November 2018 VA examination, the Veteran demonstrated left knee flexion to 90 degrees with pain noted on exam and causing functional loss. There was no additional limitation of motion on repetitive motion. The examiner was unable to say without mere speculation whether there was additional loss of motion on repetitive motion testing over time and on flare-ups. However, the Veteran denied having any flare-ups. At the June 2020 VA examination, the Veteran complained of functional loss from knee pain, stiffness, limited range of motion, difficulty with bending, prolong standing, walking, or climbing stairs. He reported flare-ups of the left knee occur monthly, are moderate, last 1-2 days, are precipitated by physical activity and alleviated by resting. The Veteran demonstrated left knee flexion to 60 degrees with pain noted on exam and causing functional loss. There was additional limitation of motion on repetitive motion, with flexion limited to 50 degrees, due to pain, fatigue and lack of endurance. There was additional limitation of motion on repetitive use over time, with flexion limited to 40 degrees, due to pain and lack of endurance. The examiner also found there was additional limitation of motion due to flare-ups, with flexion limited to 35 degrees, upon consideration of limitation due to pain and lack of endurance. Also, a July 2020 knee Disability Benefits Questionnaire (DBQ) by a private physician, Dr. R.D., found left knee flexion limited to 95 degrees. The examiner found the Veteran was unable to perform repetitive use testing due to “significant risk of further injury”. The examiner found additional limitation of motion due to flare-ups, with flexion limited to 60 degrees, due to severe pain. The examiner found reduced muscle strength of 3/5 for left knee flexion due to his disability. The examiner found functional loss in both knees of limited motion, weakened movement, excess fatigability, incoordination, pain on movement, swelling, disturbance of locomotion, interference with sitting, and interference with standing. VA treatment records do not show evidence of increased impairment for left knee limitation of flexion. Regarding left knee limitation of extension, there are several VA knee examiners of record that found that left knee extension was to 0 degrees, even with pain observed on motion. See August 2011 VA examination, November 2018 VA examination and June 2020 VA examination. Further, the January 2012 and May 2015 VA examiners found extension to 0 degrees with no objective evidence of pain on motion. A July 2020 knee DBQ by Dr. R.D. found left knee extension limited to minus 50 degrees, and limited to minus 55 degrees on flare-ups, due to severe pain. Initially, it is not clear whether to interpret these findings as indicating hyperextension (usually indicated by “minus” findings) or significant limitation of extension that exceeds the criteria for the maximum 50 percent rating (extension limited to 45 degrees) under DC 5261. Ultimately, the Board accords no probative value to the July 2020 DBQ findings on limitation of extension, as such findings are simply aberrant compared to the other range-of-motion of findings consistently showing extension to 0 degrees. VA treatment records do not show evidence of increased impairment for left knee limitation of extension. Overall, a review of the medical evidence does not show any findings of left knee flexion limited to 30 or less degrees, as necessary for a higher 20 percent rating for limitation of flexion under DC 5260. Also, he has consistently had full range of left knee motion on extension (to 0 degrees), with or without pain. The Veteran’s probative findings have never approached limitation of extension of the leg to even 5 degrees as necessary for a noncompensable rating for limitation of extension under DC 5261, let alone extension limited to 10 degrees as necessary for a 10 percent rating under DC 5261. The Board acknowledges the Veteran’s lay reports of symptoms including pain and note that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, this would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or limitation of extension beyond 0 degrees. In this case, there is no objective evidence of additional range of motion loss due to pain on use, as asserted by the Veteran, that would result in functional limitation to the extent that higher or additional ratings are warranted under Diagnostic Code 5260 and/or Diagnostic Code 5261. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See 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 paying compensation twice for the same symptoms or functional impairment). However, there is no evidence in the record to support an increased rating under DC 5256 as there is no left knee ankylosis. See VA examination reports dated August 2011, November 2018, and June 2020. There is also no contention or medical evidence of record to support higher ratings under DC 5258 (dislocated semilunar cartilage), DC 5259 (removal of semilunar cartilage), DC 5262 (impairment of tibia and fibula), and DC 5263 (genu recurvatum). As noted above, the Board’s September 2018 decision restored a 10 percent evaluation for left knee instability under DC 5257 (recurrent subluxation or lateral instability), so the question of a higher rating for instability is not presently before the Board. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for the Veteran’s left knee disability for limitation of motion during this period. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a TDIU prior to July 28, 2016. In this case, the Veteran appears to have first met the TDIU schedular requirements on July 28, 2016, and was hence awarded a TDIU since that date. 38 C.F.R. § 4.16(a). Nonetheless, entitlement to TDIU on an extraschedular basis should be considered for the period prior to July 28, 2016. The Veteran reportedly has not been able to maintain full-time employment since approximately 2006, due to his service-connected bilateral ankle and knee disabilities. See February 2015 and June 2020 TDIU Application (VA Form 21-8940). He has variously reported prior occupational history as dishwasher, a shaker operator/construction worker, and a maintenance worker. Id; see also August 2011 VA joints examination. The Veteran’s reported information on education is that he reported he had a high school education through the 9th grade. See February 2015 TDIU Application. The Board observes there are medical findings by VA examiners that indicate a TDIU may be warranted prior to July 28, 2016, on an extraschedular basis. For instance, the August 2011 VA joints examiner’s comments appear to support a TDIU: “The Veteran is limited on how far he can walk. He will need to use some motorized device to ambulate more than 50 feet. He will need to take frequent breaks. He will not be able to carry or lift due to the need to use a cane. He will need to sit more than stand or walk. He will not be able to climb stairs. He will need access to an elevator....He will not be able to squat or participate in any activities that require him to bend his knees. He will need to take his pain medication when he feels it is necessary. All of the above limitations [are] related to his [service-connected] ankles and knee condition.” Further, a July 2020 knee Disability Benefits Questionnaire (DBQ) by a private physician, Dr. R.D., appears to support the notion of a TDIU as due solely to the service-connected left knee disability, since 2009, finding he could no longer perform his job due to inability to stand or walk for any length of time. In addition, in October 2015, J.A.., a private vocational rehabilitation counselor, provided a letter supporting a TDIU, primarily as due to his service-connected knee disabilities. However, the May 2015 VA examiner found his service-connected bilateral ankle and knee disabilities do not produce occupational impairment. The January 2012 VA knee examiner did not appear to provide any independent medical finding on occupational impairment due to his left knee, despite noting the Veteran’s reports that he had to retire from maintenance work due to not being able to walk or stand for any length of time due to his left knee. The Board finds a retrospective medical opinion from a VA clinician would be helpful to assess any occupational impairments the Veteran suffered prior to July 28, 2016. The Board also finds that a referral to the Director is warranted for consideration of an extraschedular TDIU. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a qualified VA clinician on the Veteran’s TDIU claim. The clinician should indicate that the record was reviewed. On review of the record, the clinician(s) should identify all limitations or functional impairment, concerning the Veteran’s prior employment as a dishwasher, a shaker operator/construction worker, and a maintenance worker, for the period prior to July 28, 2016, as: (i) due solely to his (a) service-connected left knee disabilities, (b) right knee disabilities, (c) left ankle disability, or (d) right ankle disability; or (iii) due to all of his service-connected disabilities combined. Rationale must be provided for the opinions expressed. (Continued on the next page)   2. Transfer the case to the Director of Compensation Services for consideration of TDIU on an extraschedular basis, for the period prior to July 28, 2016. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.