Citation Nr: 21004863 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 09-22 275 DATE: January 28, 2021 ORDER An initial rating higher than 10 percent from July 23, 2007 and continuing thereafter for right knee osteoarthritis is denied. An initial rating higher than 10 percent from July 23, 2007 and continuing thereafter for left knee osteoarthritis is denied. A separate 10 percent initial rating from July 23, 2007 and continuing thereafter for right knee instability is granted. A separate 10 percent initial rating from July 23, 2007 and continuing thereafter for left knee instability is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disorders is denied. FINDINGS OF FACT 1. For the entirety of the rating period on appeal, the severity of the Veteran’s right knee osteoarthritis manifested as painful limitation of motion, and at worst, flexion at 80 degrees and extension at 0 degrees. 2. For the entirety of the rating period on appeal, the severity of the Veteran’s left knee osteoarthritis manifested as painful limitation of motion, and at worst, flexion at 85 degrees and extension at 0 degrees. 3. With resolution of the doubt in his favor, from July 23, 2007 and continuing thereafter, the Veteran’s right knee lateral instability manifested as slight impairment. 4. With resolution of the doubt in his favor, from July 23, 2007 and continuing thereafter, the Veteran’s left knee lateral instability manifested as slight impairment. 5. The Veteran’s service-connected disorders have not precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish an initial rating higher than 10 percent for the entirety of the rating period on appeal for right knee osteoarthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5003 (2019). 2. The criteria to establish an initial rating higher than 10 percent for the entirety of the rating period on appeal for left knee osteoarthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5003 (2019). 3. The criteria to establish a separate 10 percent initial rating from July 23, 2007 and continuing thereafter for right knee lateral instability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5257 (2019). 4. The criteria to establish a separate 10 percent initial rating from July 23, 2007 and continuing thereafter for left knee lateral instability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5257 (2019). 5. The criteria to establish a TDIU for the entirety of the rating period on appeal have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy Reserve and Navy from October 1986 to January 1990 and from January 1990 to January 1994, respectively. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of the Seattle, Washington Regional Office (RO). In April 2017, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In April 2020, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating – Right and Left Knee Osteoarthritis Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2019). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2019). DC 5003 provides that degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003 (2019). Under DC 5003, when limitation of motion would be noncompensable, i.e., zero percent, under a limitation-of-motion code, but there is at least some limitation of motion, VA assigns a 10 percent disability rating for each major joint so affected, to be combined, not added. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of any limitation of motion, involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent evaluation, and the same with occasional incapacitating exacerbations warrants a 20 percent evaluation. Id. The knee is considered a major joint. 38 C.F.R. § 4.45(f) (2019). Under DC 5260, limitation of flexion to 60 degrees warrants a noncompensable rating; limitation of flexion to 45 degrees warrants a 10 percent rating; limitation of flexion to 30 degrees warrants a 20 percent rating and limitation of flexion to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260 (2019). Under DC 5261, limitation of extension limited to 5 degrees warrants a noncompensable rating; limitation of extension limited to 10 degrees warrants a 10 percent rating; limitation of extension limited to 15 degrees warrants a 20 percent rating; limitation of extension limited to 20 degrees warrants a 30 percent rating; limitation of extension limited to 30 degrees warrants a 40 percent rating and limitation of extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261 (2019). Under DC 5257, slight recurrent subluxation or lateral instability warrants a 10 percent rating, moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5257 (2019). The words “slight,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just,” under 38 C.F.R. § 4.6 (2019). Separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under DCs 5003-5010 and DC 5257 (or under DCs 5258 or 5259) without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 or DC 5261. The Veteran’s knee disorder is rated 10 percent disabling from July 23, 2007 and continuing thereafter for right and left knee osteoarthritis under DC 5003. The appellate period is from July 23, 2007. In a July 2007 statement, the Veteran reported experiencing trouble with walking and an abnormal gait. In a September 2007 statement, the Veteran reported experiencing bilateral knee pain, achiness, swelling, misalignment and trouble with walking. A March 2009 statement reflects the Veteran’s report of experiencing bilateral knee pain. The Veteran is competent to report having experienced bilateral knee instability and DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). In the August 2009 VA examination, the Veteran reported experiencing bilateral knee pain and swelling. The Veteran reported experiencing bilateral knee flare-ups described as pain due to prolonged walking, standing, climbing stairs and ladders. The Veteran reported experiencing bilateral knee functional impairment described as an inability to lift heavy objects and limited activity with his children. A bilateral knee radiograph revealed mild left knee patellar spurring and no significant joint space narrowing. Initial range of motion testing for the right knee revealed flexion at 80 degrees and extension at 0 degrees. The left knee revealed flexion at 85 degrees and extension at 0 degrees. There was pain on motion for both knees. There was pain after repetitive-use testing with no additional limitation in range of motion. The Veteran’s weight-bearing joint was affected and described as resulting in poor propulsion. The examiner noted an abnormal shoe wear pattern but no bone loss. A physical examination of both knees revealed effusion, tenderness, weakness and guarding of movement. Knee clicks and subpatellar tenderness was noted. There was no crepitus, knee mass, grinding, instability, meniscus abnormalities, abnormal tendons, episodes of dislocation, subluxation or locking episodes. In his July 2010 notice of disagreement, the Veteran reported experiencing bilateral knee achiness, “knee fluid,” and trouble with walking. In the September 2015 VA examination, the Veteran reported experiencing right knee flare-ups described as pain, swelling, trouble with walking, weight-bearing, and left knee flare-ups described as pain. The Veteran reported experiencing bilateral knee functional impairment described as an inability to hike, fish and participate in gym activity. Initial range of motion testing for both knees revealed flexion at 120 degrees and extension at 0 degrees. The limited range of motion did not contribute to functional loss. For the right knee, there was no pain on motion, no pain with weight-bearing but the examiner noted tenderness to palpation and crepitus. For the left knee, there was no pain on motion, no pain with weight-bearing, no localized tenderness or pain on palpation but crepitus was noted. The Veteran performed repetitive-use testing with at least three repetitions with no additional functional loss or range of motion. The Veteran was not examined immediately after repetitive use but the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use for both knees. The Veteran’s pain and lack of endurance significantly limited functional ability with repetitive use for both knees and the examiner was unable to describe in terms of range of motion due to “the limited time frame within which the standard clinical exam is conducted is insufficient to make such an assessment accurately.” The examination was not conducted during a flare-up but the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups for both knees. Pain and lack of endurance significantly limited functional ability with flare-ups for both knees. The examiner was unable to describe in terms of range of motion because the Veteran was examined at the baseline for both knees. The examiner noted swelling described as mild pre-patellar effusion as an additional factor that contributed to the Veteran’s right knee disorder. No additional contributing factors were noted for the Veteran’s left knee disorder. Muscle strength and joint stability testing were normal. There was no muscle atrophy, ankylosis, history of recurrent subluxation or lateral instability. Recurrent effusion was noted for the right knee but not the left knee. There was no tibial or fibular impairments, meniscal conditions, other pertinent physical findings, or scars. In his April 2017 Board hearing, the Veteran testified that although his knees had not “completely given out,” there were several instances he had to get off of his feet. In the October 2020 VA examination, the Veteran reported experiencing right knee flare-ups manifested as pain due to over-working, walking and using stairs. The Veteran reported experiencing left knee flare-ups manifested as pain due to prolonged walking, standing and using stairs. The Veteran also reported experiencing functional impairment for both knees described as trouble with prolonged standing and sitting. Initial range of motion testing for the right knee revealed flexion at 120 degrees and extension at 0 degrees. Range of motion for the left knee revealed flexion at 115 degrees and extension at 0 degrees. There was pain on motion and pain with weight-bearing for both knees. No localized tenderness or pain on palpation was noted. The examiner noted crepitus for both knees. The Veteran performed repetitive-use testing with at least three repetitions with no additional loss of function or range of motion for both knees. The Veteran was examined immediately after repetitive-use testing for both knees and no factors significantly limited functional ability with repetitive-use. The examination was not conducted during bilateral knee flare-ups but the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. Pain, weakness and lack of endurance significantly limited functional ability with flare-ups for the right knee and the examiner described in terms of range of motion as flexion at 110 degrees and extension at 0 degrees. It was noted that pain, fatigue, weakness and lack of endurance significantly limited functional ability with flare-ups for the left knee and the examiner described in terms of range of motion as flexion at 100 degrees and extension at 0 degrees. Additional factors that contributed to the Veteran’s bilateral knee disorder were interference with sitting and standing due to the Veteran’s trouble with prolonged standing and sitting. Muscle strength and joint stability testing revealed normal findings. There was no muscle atrophy, ankylosis, history of recurrent subluxation, lateral instability, recurrent effusion, tibial or fibular impairments, meniscal conditions, other pertinent physical findings, or scars. The Veteran did not use assistive devices. The examiner noted pain on passive range of motion testing and no pain on non-weight bearing testing for both knees. A preponderance of the evidence is against a finding of initial ratings higher than 10 percent for the entirety of the rating period on appeal for both knees under DC 5003. The evidence reflects that the severity of the Veteran’s right knee was, at worst, flexion at 80 degrees and extension at 0 degrees with pain on motion and the left knee was, at worst, flexion at 85 degrees and extension at 0 degrees with pain on motion. Therefore, higher initial ratings are not warranted and the claims are denied. The Board will grant separate 10 percent ratings, based on the benefit-of-the-doubt doctrine, under DC 5257 from July 23, 2007 and continuing thereafter for the Veteran’s right and left knee instability. Although three VA examinations revealed no bilateral knee instability, as noted above, DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned, and the Veteran has consistently reported experiencing trouble with walking and bilateral knee weakness. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, separate 10 percent ratings are warranted and the claims are granted. A separate rating under DC 5256 is not warranted because the evidence shows that the Veteran does not have right or left knee ankylosis. A separate rating under DC 5258 is not warranted because the evidence does not reflect that the Veteran underwent a dislocated semilunar cartilage. A separate rating under DC 5259 is not warranted because the evidence does not indicate that the Veteran underwent removal of semilunar cartilage. Separate ratings are not warranted under DCs 5260 and 5261 because the Veteran's flexion and extension constituted noncompensable ratings. A separate rating under DC 5262 is not warranted because the evidence does not show an impairment of the Veteran's tibia and fibula. A separate rating is not warranted under DC 5263 because the evidence does not show that the Veteran has genu recurvatum. TDIU In April 2020, the Board found that an inferred issue of the Veteran’s entitlement to TDIU had been raised in the September 2015 VA examination. The Board then remanded the claim for further development. TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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) (2019). The Veteran’s service-connected disabilities include lumbosacral spine degenerative disc disease rated 10 percent disabling from April 27, 1995 to January 21, 1999 and 60 percent disabling from January 22, 1999 and continuing thereafter; right knee osteoarthritis rated 10 percent disabling from July 23, 2007 and continuing thereafter; left knee osteoarthritis rated 10 percent disabling from July 23, 2007 and continuing thereafter; right knee lateral instability rated 10 percent disabling from July 23, 2007 and continuing thereafter; left knee lateral instability rated 10 percent disabling from July 23, 2007 and continuing thereafter; tinnitus rated 10 percent disabling from July 23, 2007 and continuing thereafter; left hand residual scars rated noncompensable from January 29, 1994 to July 15, 2009 and 10 percent disabling from July 16, 2009 and continuing thereafter; right hand residuals scars rated noncompensable from January 29, 1994 to July 15, 2009 and 10 percent disabling from July 16, 2009 and continuing thereafter; right eye corneal scar rated noncompensable from January 29, 1994 and continuing thereafter; and burn scars rated noncompensable from January 29, 1994 and continuing thereafter. The Veteran has met the schedular criteria under 4.16(a). The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2019). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. Thus, the central question is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In April 2020, the Board remanded the claim for a TDIU because the Veteran’s then-current employment status was not clear. In May 2020, the RO mailed to the Veteran a VA Form 21-8940, Application For Increased Compensation Based On Unemployability. The Veteran did not submit the VA Form 21-8940 and in a June 2020 statement, the Veteran indicated that he was “not requesting unemployability.” A preponderance of the evidence is against the claim. Therefore, a TDIU is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.