Citation Nr: 21003605 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 12-01 036 DATE: January 22, 2021 ORDER A rating higher than 10 percent for limitation of flexion of the right knee due to chondromalacia is denied. A compensable rating prior to April 14, 2015, and higher than 10 percent thereafter for limitation of extension of the right knee is denied. A rating of 30 percent for lateral instability of the right knee is granted. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability manifested by pain on movement with limitation of flexion, including during flareups, no less than 60 degrees throughout the period on appeal. 2. The Veteran’s right knee disability manifested by extension limited to 5 degrees prior to April 14, 2015, and extension limited to 10 degrees thereafter. 3. The Veteran’s right knee disability also manifested by severe lateral instability throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for limitation of flexion of the right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a compensable rating prior to April 14, 2015, and higher than 10 percent thereafter for limitation of extension of the right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5261. 3. The criteria for a rating of 30 percent for right knee lateral instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2001 to November 2005 in the U.S. Navy. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a Board hearing in December 2011; however, the request was withdrawn in an August 2014 Correspondence. This case was most recently before the Board in August 2019, at which time the issue of entitlement to a higher rating for right knee chondromalacia was remanded for further development. This case has now been returned to the Board for appellate consideration. An April 2015 rating decision assigned separate ratings for right knee limitation of extension and moderate instability. As these ratings are not a total grant of benefits, the claim for a higher rating remains before the Board. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran’s right knee disability was assigned a 100 percent rating from May 3, 2013 to September 1, 2013. Therefore, this decision only pertains to entitlement to an increased rating for his right knee before and after the assigned 100 percent rating. Increased Rating The Veteran contends that a higher rating is warranted for his service-connected right knee disability. 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. 38 C.F.R. Part 4. 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. The degree of disabilities specified are generally 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 DCs 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. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). Right Knee Limitation of Motion The Veteran is currently assigned a 10 percent rating for limitation of flexion of the right knee under DC 5260 based on painful motion. DC 5260 provides a 10 percent rating for flexion limited to 45 degrees, a 20 percent rating for flexion limited to 30 degrees, and a 30 percent rating for flexion limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260. The Veteran is also assigned a noncompensable rating prior to April 14, 2015, and a 10 percent rating thereafter, under DC 5261 for limitation of extension. Under 5261, a noncompensable rating is assigned when extension 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 assigned when extension is limited to 30 degrees, and a 50 percent rating is assigned when extension is limited to 45 degrees. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. See 38 C.F.R. § 4.71a, Plate II. 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). 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). The Veteran was afforded VA examinations in June 2009, April 2015, April 2017, and September 2020. During the June 2009 VA examination, the Veteran reported that he walks with a cane, has mild pain, and has instability by giving-way when he walks. He also reported daily flareups. The Veteran denied stiffness. On examination, there was no sign of inflammation. Additionally, there was no swelling, effusion, or deformity, or sign of instability. The Veteran’s flexion was limited to 112 degrees with no pain and extension was limited to 5 degrees with no pain. He could walk on his toes and heels, however he refused to squat due to pain. There was normal muscle tone and strength, no ankylosis, or inflammatory arthritis. The examiner noted that there is functional limitation by standing, walking, jogging, running, and climbing stairs due to discomfort in his right knee and that the Veteran cannot walk more than two blocks. The examiner also noted that his right knee disability has effect on his job and activities of daily living, including personal grooming, hygiene, transportation, and his current occupation. The examiner did not find additional limitation either due to pain, weakness, fatigue, lack of endurance after repetitive motion, incoordination, or flareup. During the April 2015 VA examination, the Veteran reported that he experiences falls due to right knee instability with episodes of instability occurring 6-10 times per week, usually while changing positions or stepping around objects. He also reported that he uses a cane daily. Additionally, the Veteran reported that he experiences flareups with increased pain, reduced range of motion, and difficulty with weight bearing. He stated that during the examination he was experiencing a mild or partial flareup. Regarding functional loss, the Veteran reported that he cannot kneel or exercise by running. On examination, flexion was limited to 95 degrees and extension was limited to 10 degrees. Pain was noted on examination and caused functional loss. Pain was also noted with weight bearing. The examiner found tenderness at the circumference of the patella and it was greatest at the inferior anterior patella. Additional functional loss or range of motion was not found after three repetitions. The examiner stated that because additional limitation of motion was not demonstrated after three repetitions, it would be mere speculation to state significant limitation with repeated use over time. Regarding flareups, the examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination would significantly limit functional ability, but further stated that the Veteran stated he is unable to walk to campus classrooms during a flareup. The examiner noted that the Veteran has disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal, and the Veteran did not have ankylosis. The examiner found that the Veteran has a history of severe lateral instability. The examiner also found that the Veteran had a meniscal tear with frequent episodes of joint locking and frequent episodes of joint pain. Regarding functional impairment, the examiner stated that the Veteran’s right knee disability would preclude physical jobs like soldiering, however it would not impact a sedentary job like telephone sales. The April 2017 VA examination was consistent with the April 2015 VA examination. However, the Board finds that the April 2015 VA examination is inadequate for adjudication purposes because the examiner did not adequately address functional loss due to flareups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the examination will not be considered. During the September 2020 VA examination, the Veteran was diagnosed with right knee chondromalacia and medial meniscal tear, status post-surgery with medial instability. The examiner stated that the condition has progressed or worsened since the date of onset in 2003. The Veteran reported flareups that consist of sharp pain and stiffness. Regarding functional impairment, the Veteran reported that he has difficulty squatting. On examination, flexion was limited to 90 degrees and extension was limited to 0 degrees. Pain was noted on examination. Pain was also noted during weight bearing. After 3 repetitions, lack of endurance caused additional functional loss resulting in flexion limited to 80 degrees and extension limited to 0 degrees. The examiner stated that after repeated use over time, pain and lack of endurance would cause additional functional loss resulting in flexion limited to 70 degrees and extension limited to 0 degrees. During flareups, the examiner stated that pain and lack of endurance would cause additional functional loss resulting in flexion limited to 60 degrees and extension limited to 0 degrees. Muscle strength testing was normal, and the Veteran did not have muscle atrophy or ankylosis. The examiner did not find that the Veteran had a history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner noted that the Veteran has had a meniscal tear with residuals of pain and stiffness. The examiner also noted that the Veteran uses a knee brace for support. Regarding functional loss, the examiner stated that the Veteran is limited in walking and standing for prolonged periods of time due to pain, but there are no restrictions on sedentary tasks. Throughout the period on appeal, the Veteran has stated that he uses a cane to ensure that he does not fall while walking, has constant pain in his right knee, and has difficulty standing and walking for long periods and when ascending, which increases instability of his knee. See e.g. December 2009 Statement in Support of Claim. After review of the record, the Board finds that the Veteran’s range of motion of the right knee has been consistent throughout the period on appeal. His documented limitation of flexion, including during flareups, has been no less than 60 degrees. Therefore, a higher rating under DC 5260 is not warranted. Additionally, the Board finds that prior to April 15, 2015 the Veteran’s limitation of extension of the right knee manifested to no more than 5 degrees, and thereafter his right knee disability manifested to no more than 10 degrees. Therefore, a higher rating under DC 5261 is not warranted. Right Knee Instability The Veteran is currently assigned a 20 percent rating from April 14, 2015 for right knee lateral instability under DC 5257. Under DC 5257, a 10 percent rating is assigned when slight impairment is shown, a 20 percent rating is assigned for moderate disability, and a maximum 30 percent evaluation is assigned for severe disability. 38 C.F.R. §§ 4.71a; see also Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (holding that DC 5257 is not predicated on loss of range of motion). Descriptive terms such as “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The Board finds that the medical evidence of record shows that the Veteran has had severe right knee lateral instability throughout the period on appeal. The April 2015 and April 2017 VA examiner noted that the Veteran has severe right knee lateral instability. This finding is consistent with the Veteran’s lay statements and his VA treatment records. Therefore, the Board finds that a 30 percent rating is warranted for severe lateral instability of the right knee, effective March 4, 2009, the date of the Veteran’s claim for an increased rating. As this is the highest schedular rating for lateral instability, there is no basis to award a higher evaluation. As part of its analysis, the Board has considered whether a separate rating under DC 5258 is warranted for dislocated semilunar cartilage. DC 5258 provides that a 20 percent rating is warranted for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. However, while the medical evidence of record demonstrates that the Veteran has a meniscal tear with frequent episodes of locking and pain, there is no evidence of frequent episodes of effusion into the joint. Although the Veteran’s VA treatment records note joint effusion in February 2018, he has not had frequent episodes of joint effusion throughout the period on appeal. Accordingly, a separate rating is not warranted under DC 5258. The Board has considered other potentially applicable DCs for rating the Veteran’s service-connected knee disability. However, as the record does not reflect any ankylosis (DC 5256), tibia and fibula impairment (DC 5262) or genu recurvatum (DC 5263), those DCs are not for application. In sum, a rating higher than 10 percent for the Veteran’s right knee disability pursuant to DC 5260 is not warranted, and a compensable rating prior April 14, 2015, and higher than 10 percent thereafter pursuant to DC 5261 is not warranted; however, resolving reasonable doubt in the Veteran’s favor, a rating of 30 percent right knee instability pursuant to DC 5257, is warranted. REASONS FOR REMAND TDIU The Veteran’s medical records indicate that his service-connected right knee disability affects his ability to work. Accordingly, the Board finds that the issue of entitlement to a TDIU has been raised by the record and has been included in this decision as part of his claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not completed a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. This form gathers relevant information regarding a claimant’s employment and educational histories and concludes with a series of sworn certification statements. A completed VA Form 21-8940 should be obtained on remand because the current record contains incomplete information regarding the Veteran’s employment history. Additionally, the record indicates that the Veteran participated in VA’s Vocational Rehabilitation and Employment program. However, the claims file does not include vocational rehabilitation records. Efforts should be made on remand to obtain these records. The matter is REMANDED for the following action: 1. Associate the Veteran’s VA Vocational Rehabilitation and Employment file with the record. 2. Provide the Veteran and his representative a VA Form 21-8940 and advise them to complete and return the form in support of his claim for a TDIU. If the completed form is returned, conduct any additional development that may be warranted based upon the information in the form. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.