Citation Nr: 21004809 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 10-43 048 DATE: January 28, 2021 ORDER Entitlement to a disability rating in excess of 10 percent based on limitation of extension for degenerative joint disease, left knee, for the period prior to April 22, 2015, is denied. Entitlement to a separate disability rating of 10 percent for painful motion on flexion, left knee, for the period prior to April 22, 2015, is granted. Entitlement to a separate disability rating of 10 percent for left knee instability, for the period prior to April 22, 2015, is granted. Entitlement to a disability rating in excess of 10 percent based on limitation of extension for degenerative joint disease, right knee, for the period prior to September 24, 2014, is denied. Entitlement to a separate disability rating of 10 percent for painful motion on flexion, right knee, for the period prior to September 24, 2014, is granted. Entitlement to a separate disability rating of 10 percent for right knee instability, for the period prior to September 24, 2014, is granted. Entitlement to an evaluation in excess of 30 percent for total knee replacement, right knee, for the period from November 1, 2015 to September 28, 2020, is denied. Entitlement to a 60 percent rating for total knee replacement, right knee, for the period from September 28, 2020, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 24, 2014 is granted. FINDINGS OF FACT 1. The Veteran’s left knee did not have limitation of extension to 15 degrees during the period prior to April 22, 2015, even considering pain on use and during flareups. 2. The Veteran’s left knee was productive of painful flexion causing functional loss for the period prior to April 22, 2015. At no time during the pendency of the appeal, however, was flexion limited to 30 degrees or less, even considering pain on use during flareups. 3. The Veteran’s left knee was manifested by subjective complaints of instability during the period prior to April 22, 2015. 4. The Veteran’s right knee did not have limitation of extension to 15 degrees during the period prior to September 24, 2014, even considering pain on use and during flareups. 5. The Veteran’s right knee was productive of painful flexion causing functional loss for the period prior to September 24, 2014. At no time during the pendency of the appeal, however, was flexion limited to 30 degrees or less, even considering pain on use during flareups. 6. The Veteran’s right knee disability was manifested by subjective complaints of instability during the period prior to September 24, 2014. 7. During the period from November 1, 2015 to September 28, 2020, the Veteran’s total right knee replacement residuals consisted of intermediate degrees of pain, limited motion and weakness. 8. For the period from September 28, 2020, the Veteran’s total right knee replacement residuals consisted of severe painful motion or weakness. 9. The Veteran’s service-connected disabilities precluded him from securing or maintaining substantial gainful employment for the period from August 30, 2007 to September 24, 2014. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for limitation of extension of the Veteran’s left knee prior to April 22, 2015 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 2. The criteria for a separate rating of 10 percent for limitation of flexion of the Veteran’s left knee for the period prior to April 22, 2015 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. The criteria for a separate rating of 10 percent for left knee instability for the period prior to April 22, 2015 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. The criteria for a disability rating in excess of 10 percent for limitation of extension of the Veteran’s right knee for the period prior to September 24, 2014 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 5. The criteria for a separate disability rating of 10 percent for limitation of flexion of the Veteran’s right knee for the period prior to September 24, 2014 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 6. The criteria for a separate disability rating of 10 percent for right knee instability for the period prior to September 24, 2014 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 7. The criteria for a rating higher than 30 percent for residuals of a total right knee replacement for the period from November 1, 2015 to September 28, 2020 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5055. 8. The criteria for a 60 percent rating for residuals of a total right knee replacement for the period from September 28, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5055. 9. The criteria for a TDIU are met for the period from August 30, 2007 to September 24, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1974 to May 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This matter was previously before the Board in November 2015. At that time, the Board remanded the claims for increased ratings for the Veteran’s bilateral knee disabilities in order to obtain updated VA examinations. The claim for a TDIU was remanded as inextricably intertwined with the increased ratings claims. The record reflects that updated VA examinations for the Veteran’s knees were conducted, and the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appellant has expressed dissatisfaction with the assignment of a rating, separate, or “staged,” ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. See id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Court has held that the provisions of 38 C.F.R. § 4.59 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 intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Generally, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016); 38 C.F.R. § 4.59. Under Diagnostic Code 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating; 15 degrees warrants a 20 percent rating; 20 degrees warrants a 30 percent rating; 30 degrees warrants a 40 percent rating and 45 degrees warrants a 50 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5257 covers “other impairment of the knee,” and provides a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. A knee disability can be rated for both limitation of leg flexion under Diagnostic Code 5260 and limitation of leg extension under Diagnostic Code 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. Under Diagnostic Code 5055, a 100 percent rating is assigned for 1 year following implantation of the prosthesis. Following that 1-year period, a 60 percent rating may be assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to Diagnostic Codes 5257, 5261 or 5262, with a minimum rating of 30 percent. Diagnostic Code 5161 applies to amputation of the thigh at the upper third, one-third of the distance from perineum to knee joint measured from perineum, and provides for an 80 percent rating. The Veteran underwent total right knee replacement in September 2014 and total left knee replacement in April 2015. The Veteran underwent an above the knee amputation of his left leg in May 2018. The Veteran’s left knee is rated at 10 percent for limitation of extension prior to April 22, 2015, 60 percent for total left knee replacement from June 1, 2016 and 80 percent for left above the knee amputation from June 1, 2018. The Veteran’s right knee disability is rated at 10 percent for limitation of extension prior to September 24, 2014. The Veteran’s total right knee replacement is rated at 30 percent from November 1, 2015. The claim for an increased rating of the bilateral knees was received by VA on August 30, 2007. After reviewing the evidence of record, the Board declines to assign ratings greater than 10 percent for limitation of extension for the Veteran’s left and right knee disabilities during the relevant appeal periods. However, the Board assigns separate 10 percent ratings for painful flexion and instability of the left and right knees for the applicable periods. The Board also declines to assign a rating greater than 30 percent for the Veteran’s total right knee replacement for the period prior to September 28, 2020, but assigns a 60 percent rating thereafter. The 60 percent rating for the Veteran’s left knee total replacement from June 1, 2016 is the maximum disability rating available under Diagnostic Code 5055. In addition, under the “amputation rule,” the combined rating for orthopedic disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. An amputation at the middle or lower thigh or at or above the knee level warrants a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5162-5164. As the Veteran is in receipt of a 60 percent rating for his residuals from a total left knee replacement from June 1, 2016 to June 1, 2018, additional compensation would be precluded under 38 C.F.R. § 4.68. The 80 percent rating for the Veteran’s left knee amputation from June 1, 2018 is the maximum allowable under Diagnostic Code 5161. As the Veteran’s September 2020 VA examination for amputation notes that the Veteran underwent an above the knee amputation in June 2018, a rating higher than 80 percent is not available. As relevant here, the Veteran was afforded VA examinations in December 2007, June 2018, September 2019 and September 2020. At the time of the December 2007 VA examination, the Veteran’s flexion was measured as limited to 90 degrees and to 80 degrees with pain in the right knee and as limited to 120 degrees in the left knee. Extension was measured to 0 degrees in both knees. Pain was noted at the extremes and no instability noted. During the June 2018 VA examination, the Veteran’s right knee symptoms were noted to include stiffness, swelling, crackling achy, throbbing pain with movement and non-movement and an inability to walk, stand or sit for prolonged periods. The Veteran reported daily moderate to severe flareups. Right knee range of motion was measured as flexion limited to 90 degrees and extension to 0 degrees. Pain was noted on flexion and extension. Range of motion after 3 repetitions was measured as flexion limited to 80 degrees and extension to 0 degrees. The Veteran was noted to have intermediate degrees of residual weakness, pain or limitation of motion following the 2014 total right knee replacement. During the September 2019 VA examination, the Veteran’s symptoms were noted to include pain, giving out, swelling and sharp pain when standing, sitting or using his walker, with crunching and popping sounds. Right knee flexion measured to 75 degrees and extension was measured to 15 degrees, with estimated flexion limited to 60 degrees and extension limited to 15 degrees during flareups. The Veteran’s right knee total replacement was noted to have intermediate degrees of residual weakness, pain or limitation of motion. During the September 2020 VA examination the Veteran reported functional impairment with walking, standing, sitting, bathing and driving. Range of motion for the right knee could not be tested because the Veteran was confined to a wheelchair as a result of his left, above-the- knee amputation. The examiner noted objective evidence of localized tenderness or pain on palpation. The examiner also noted that the Veteran’s total right knee replacement residuals consisted of severe painful motion or weakness. Private treatment records reflect range of motion measurements for the right knee as flexion measured to 110 degrees and extension to 4 degrees in July 2009 and August 2009. Left knee range of motion measurements in the private treatment records include measurements of flexion to 115 degrees and extension to 3 degrees in July 2009 and flexion to114 degrees and extension to 3 degrees in August 2009. Flexion of the right knee was measured to 130 degrees and extension to 0 degrees in June 2016, July 2016, October 2016, December 2016 and January 2017. VA treatment records include range of motion measurements of the right knee measured to 80 degrees flexion and extension to 5 degrees in May 2009. Left knee range of motion was measured as flexion to 90 degrees and extension to 2 degrees. VA treatment records also include right knee range of motion measurements of flexion to 110 degrees in November 2014 and February 2015 with mild pain noted with deep knee flexion. In September 2017, no pain was noted in the right knee to active and passive motion. Range of motion of the right knee was measured as flexion to 180 degrees in August 2018, with 130 degrees flexion while sitting in a wheelchair. The Veteran complained of stiffness, pain and swelling in his knees that made it difficult to walk in a December 2007 statement. In an August 2009 statement, the Veteran reported that his knees had gotten worse and that they locked up. In August 2011, the Veteran reported that the pain in his knees resulted in limitations on his walking, standing and sitting and noted that he required replacements in both knees. In February 2012, the Veteran reported that he experienced pain and swelling in his knees and that his right leg would not completely straighten out. The Veteran testified at the August 2014 hearing that his knees would “go out” and that he would lose his balance and fall, and his friend testified to witnessing the Veteran’s instability. Range of motion testing for the relevant periods do not reveal extension limited to 15 degrees so as to warrant a 20 percent rating for limitation of extension, even when considering pain on use and during flare ups. The Board does find, however, that separate ratings of 10 percent for limitation of flexion and instability for the left knee prior to April 22, 2015 and for the right knee prior to September 24, 2014 are warranted. As to flexion, the competent medical and lay evidence of record reflects that the Veteran experienced pain on flexion. While there is no indication of flexion limited to 45 degrees, the Board finds that the Veteran is entitled to disability ratings of 10 percent for limitation of flexion of the bilateral knees under the DeLuca factors and 38 C.F.R. § 4.59. As to instability, the Veteran credibly reports loss of balance and his knees giving out during the appeal periods so as to warrant 10 percent ratings for instability of the left and right knees. See English v. Wilkie, 30 Vet. App. 347. 352-53 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). For the period from November 1, 2015 to September 28, 2020, the competent medical records reflect that the residuals of the Veteran’s total right knee replacement consisted of intermediate degrees of residual weakness, pain or limitation of motion. Such was the findings of the VA examinations in June 2018 and September 2019. Moreover, the competent medical records, including VA treatment records, private treatment records and the VA examinations do not reflect range of motion measurements that would warrant a rating in excess of 30 percent pursuant to Diagnostic Codes 5260 or 5261. As the September 2020 VA examiner noted that the Veteran experienced total knee replacement residuals consisting of severe painful motion or weakness, the Board finds that a 60 percent rating for total right knee replacement is warranted from September 28, 2020. In sum, the Board finds that the Veteran is not entitled to ratings in excess of 10 percent for limitation of extension of his knees during the applicable appeal periods, but the Veteran is entitled to separate 10 percent disability ratings for painful flexion and instability for those periods. The Veteran has received the maximum available ratings for his total left knee replacement and amputation and is not entitled to a disability rating in excess of 30 percent for his right knee replacement prior to September 28, 2020. A 60 percent rating for total right knee replacement is assigned for the period after September 28, 2020. To the extent that the Veteran’s claims for increased ratings are denied, the preponderance of the evidence is against those claims and, as such, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU The Veteran contends that he is unemployable as a result of his service-connected knee disabilities. The Board notes that the Veteran’s combined disability rating is 100 percent effective September 24, 2014. As a 100 percent rating is the maximum available, TDIU after that date is moot. In order to be entitled to a TDIU prior to September 24, 2014, the evidence must show that the Veteran was incapable “of performing the physical and mental acts required” to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A 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 either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Here, the Veteran qualifies for a schedular TDIU as of August 30, 2007 based on his bilateral knee disabilities and a left hip replacement disability rated at 50 percent. The record reflects that the Veteran is a high school graduate with 2 years of college, studying law enforcement. The Veteran served in the military police while on active duty and worked in various positions as a shipping and receiving manager or heavy equipment operator following service until 2003, when he left employment as a heavy equipment operator because of a back injury. The Veteran was determined to be 100 percent disabled for Social Security Administration (SSA) purposes as of December 2002. The Veteran reported to the December 2007 VA examiner that he had bilateral knee pain worse with standing, cold weather, climbing stairs and steps. The Veteran also reported that he was unable to squat, his knees frequently locked up after sitting for a long period of time and that he regularly used a cane. The Veteran reported that he could only stand for 5 to 10 minutes at a time, could sit for 30 minutes, walk one block and climb 5 or 6 steps. The examiner noted that the Veteran’s osteoarthritis was moderately severe in his right knee and mild to moderate in his left knee. The Veteran noted in a December 2007 lay statement that his stiffness, pain and swelling in his knees prevented him from standing and made it difficult to walk. The Veteran noted in an August 2009 lay statement that his knees had gotten worse and that they continued to lock up and swell. The Veteran also submitted a lay statement in August 2011 noting the pain in his knees that placed limitations on walking, standing, and sitting, rendering him unemployable. In a February 2012 letter, the Veteran again noted the deteriorating condition of his knees with pain, swelling and an inability to straighten out his right leg. VA treatment records reflect that the Veteran had advanced ostearthritis in his right knee and moderately severe osteoarthritis in his left knee in March 2011. A September 2014 VA treatment note documents the Veteran’s bilateral knee pain, his trouble walking stairs, getting in and out of low seats and pain with even a few steps of walking. The physician noted that the Veteran did not get relief from medication, injections or physical therapy. The Board finds that the competent medical and lay evidence supports a finding that, given the Veteran’s education, training and experience, his service-connected disabilities precluded him from obtaining and retaining substantially gainful employment prior to September 24, 2014. The Veteran’s lay statements and VA treatment records reflect that his knee pain and difficulty walking, standing or sitting would preclude him from performing the physical activities required for the activities of work on a consistent basis. Accordingly, the claim for a TDIU is granted for the period from August 30, 2007 to September 24, 2014. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.