Citation Nr: 21003886 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-28 687 DATE: January 25, 2021 ORDER A rating in excess of 10 percent for left knee chondromalacia is denied. A rating in excess of 10 percent for right knee chondromalacia is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 12, 2013 is denied. FINDINGS OF FACT 1. The Veteran’s left knee disability is manifested by complaints of pain with flexion limited to no worse than 90 degrees, with full extension. 2. The Veteran’s right knee disability is manifested by complaints of pain with flexion limited to no worse than 100 degrees, with full extension. 3. No single service-connected disability, exclusive of service-connected posttraumatic stress disorder (PTSD), caused unemployability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5260, 5261 (2020). 2. The criteria for a rating in excess of 10 percent for right knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5260, 5261 (2020). 3. The criteria for TDIU prior to August 12, 2013 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1995 to January 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision. This case was most previously before the Board in October 2018. In February 2014 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Duties to Notify and Assist Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in February 2014. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased evaluation for the knees Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2020). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155, 38 C.F.R. § 4.1 (2020). 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 (2020). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2020). Where entitlement to compensation has 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, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2020). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2020). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. Although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in a non-arthritis context, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1). Diagnostic Code 5260 concerns limitation of leg flexion. Ten, 20, and 30 percent ratings are warranted where flexion is limited to 45, 30, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 pertains to limitation of leg extension. Ten, 20, 30, 40, and maximum 50 percent ratings are warranted where extension is limited to 10, 15, 20, 30, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Standard range of motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. A claimant who has both limitation of flexion and limitation of extension of the same leg may receive separate ratings under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-2004. A claimant who has arthritis and instability of the knee may receive separate ratings under Diagnostic Codes 5003 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98; VAOPGCPREC 23-97. The Veteran’s increased rating claim for the knees was received on July 7, 2008, and the period for consideration on appeal began on July 7, 2007, one year prior to the date of receipt of her increased rating claim. The Veteran’s knees are rated as 10 percent disabling under Diagnostic Code 5014, osteomalacia. Osteomalacia is to be rated based on limitation of motion of the affected part, as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran has been diagnosed with left knee and right knee chondromalacia. At her Board hearing the Veteran indicated that her knees were excruciatingly painful and would sometimes become numb, including when sitting in the bathroom. She utilized knee braces and was taking medications including Hydrocodone. The Veteran indicated that she also would use ice packs and heating pads for knee pain relief. At her VA examinations the Veteran indicated that her knee symptoms have caused some limitation in her standing, walking, and squatting activities. She has also indicated that her knees would intermittently buckle and give way. Regarding an increased evaluation based on limitation of flexion or extension, medical records, including October 2008, August 2016, October 2019, and November 2019 VA examinations, which showed left knee flexion from 90 to 100 degrees, and right knee flexion from 100 to 110 degrees, do not show left knee or right knee flexion limited to 30 degrees. Further, there was no limitation of left or right knee extension. Accordingly, an increased evaluation on the basis of limitation of left knee or right knee extension or flexion is not warranted. The Board has considered additional limitation of function due to factors such as knee pain, weakness, incoordination, and fatigability. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has made credible complaints of knee pain and other functional impairments, such as credible complaints that her knee pain has resulted in limiting her standing, walking, and squatting activities. She has also consistently denied flare-ups. Throughout the appeal period, there have been findings such as pain during both passive and active range of motion testing, and with weight-bearing, has been noted. However, the Veteran has been able to perform left knee and right knee repetitive-use testing with no additional loss of function or range of motion. Muscle strength testing of the knees has been at least 4/5 and mostly 5/5 in the appeal period. In sum, there have been no findings regarding functional impairment from any examiner indicating that the Veteran has a left knee or right knee disability picture approximating more limited range of motion that would warrant a higher evaluation. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2020); DeLuca. All potentially applicable diagnostic codes have been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). As for left knee or right knee instability, the VA examiners indicated that objective findings of instability were not present, and left knee or right knee subluxation was not noted. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Moreover, the evidence does not reflect left knee or right knee ankylosis, semilunar cartilage involvement, impairment of the tibia and fibula, or genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. Based on the foregoing, a rating in excess of 10 percent for left knee or right knee disability is not warranted. The Board has been mindful of the “benefit-of-the-doubt” rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a favorable determination. Entitlement to TDIU VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Here, entitlement to TDIU is moot on and after March 12, 2013, as the Veteran is in receipt of 100% combined disability rating and special monthly compensation (SMC) based on disabilities rated as 60% in addition to a 100% rating assigned for PTSD. As the appeal period began in 2007, the issue of TDIU remains on appeal for that time period. Beginning in 2008, the Veteran’s service-connected disabilities are as follows: PTSD, rated at 100%; fibromyalgia, rated at 40%, left knee chondromalacia, rated at 10%; right knee chondromalacia, rated at 10%, and several disabilities rated at 0%. The combined disability rating is 100%. For this time period the Veteran is already in receipt of a 100 percent evaluation for service-connected PTSD. VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SM) under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 294 (finding that SMC “benefits are to be accorded when a veteran becomes eligible without need for a separate claim”). Subsection 1114(s) requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. Under the law, subsection 1114(s) benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. For SMC purposes, a TDIU satisfies the requirement of a service-connected disability rated as total. See Buie, 24 Vet. App. at 251; Bradley, 22 Vet. App. at 293. Therefore, the issue of entitlement to a TDIU based on a disability other than the Veteran’s psychiatric disability is still a viable avenue of meeting the requirements for SMC pursuant to 38 U.S.C. § 1111 (s). The psychiatric disability is the only one that could meet the 60% criteria; accordingly, one of the remaining service-connected disabilities must cause unemployability on its own. Here, however, the Veteran has consistently maintained that her unemployability is based on all of her disabilities, including, fibromyalgia, psychiatric disorder, and knee pain. SSA records demonstrate a finding that the Veteran is unable to work based on her psychiatric disorder and fibromyalgia. Medical records from this time period indicate the Veteran last worked in 2008 due to her psychiatric disorder and pain. The evidence thus does not demonstrate unemployability due to one disability, excluding her psychiatric disability. Accordingly, entitlement to TDIU is not met. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.