Citation Nr: 21005062 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 12-30 553 DATE: January 28, 2021 ORDER Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee is denied. Entitlement to an initial compensable rating for instability of the right knee for the period from February 19, 2010 to November 27, 2016 is denied. Entitlement to a rating higher than 10 percent for instability of the right knee since November 28, 2016 is denied. REMANDED Entitlement to total disability based on individual unemployability from February 1, 2010 to November 27, 2016. FINDINGS OF FACT 1. The Veteran’s degenerative joint disease of the right knee is manifested by pain with extension limited to, at worst, 0 degrees, and flexion limited to, at worst, 130 degrees, considering functional impairment. 2. The Veteran’s right knee was characterized as having normal stability for the period from February 19, 2010 to November 27, 2016. 3. Since November 28, 2016, the Veteran has experienced no more than slight instability in his right knee. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5260-5003. 2. The criteria for entitlement to an initial compensable rating for instability of the right knee for the period from February 19, 2010 to November 27, 2016 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.14, 4.59, 4.71a, DCs 5003, 5257. 3. The criteria for entitlement to a rating higher than 10 percent for instability of the right knee since November 28, 2016 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.14, 4.59, 4.71a, DCs 5003, 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 2000 to February 2010, including service in Iraq. The Veteran testified at a videoconference hearing before the undersigned VLJ in January 2017. This appeal was remanded by the Board in March 2018 and June 2020 for further development. It has now returned for appellate review. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26 (2017). 1. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee. The Veteran states that his service-connected right knee disability is more severe than his 10 percent evaluation would indicate. The Veteran’s right knee degenerative joint disease (DJD) is rated pursuant to DCs 5260-5003. Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint. VAOPGCPREC 09-04. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the knee 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. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5010 provides that arthritis due to trauma, as substantiated by x-ray findings, is to be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Diagnostic Code 5003 further states that, where 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 such major joint affected by limitation of motion, to be combined, not added. 38 C.F.R. § 4.71a, Diagnostic Code 5003; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Where a Veteran has degenerative joint disease, which is evaluated under Diagnostic Code 5003, a separate, compensable evaluation may be assigned under Diagnostic Code 5257 or 5258 if there are concomitant symptoms, such as knee instability or subluxation. To the extent Diagnostic Code 5257 may be applicable in this case, such code rates impairment based on recurrent subluxation or lateral instability of the knee, and provides a 10 percent evaluation where there is evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran’s claims for higher ratings for right knee instability will be discussed further below. Turning to the merits of the claim, on the July 2010 VA knee examination, the Veteran did not report that flare-ups impacted the function of the knee. Range of motion measurements indicated normal extension and 130 degrees flexion, without objective evidence of pain. The Veteran was able to perform repetitive-use testing without objective evidence of pain. There was no tenderness or pain to palpation for joint line or soft tissues of the right knee. Muscle strength testing and joint stability tests were normal. There was mild crepitus. There was no joint swelling, or ankylosis. There was no evidence of inflammatory arthritis at that time. The examining physician diagnosed right knee pain. During the November 2016 VA knee Disability Benefits Questionnaire (DBQ) examination, the Veteran presented with a complaint of knee pain. Functional impairment or loss was described as discomfort after standing or walking for several hours. The Veteran stated that he occasionally needs to sit to do work for the remainder of the day when his knee hurts. Range of motion measurements indicated normal range of motion. Pain was noted on examination but did not result in or cause functional loss. Pain was noted on flexion, but there was no evidence of pain with weight-bearing. There was no objective evidence of localized tenderness or crepitus. He was able to perform repetitive-use testing with no additional loss of range of motion. Pain, weakness, fatigability or incoordination did not significantly ability limit with flare-ups. Muscle strength testing of the right knee was normal. There was no muscle atrophy, joint stability tests were normal, and he did not require the use of any assistive devices. The examining physician opined that the right knee disability impacted the Veteran’s ability to stand or walk more than 4 or more hours at a time, requiring him to sit for an hour or remainder of the workday and work from a desk. There was no objective evidence of pain on passive range of motion testing of the right knee, or evidence of pain on non-weight bearing testing of the right knee. In January 2017, the Veteran testified that he had right knee pain that impacts functions such as bending his knee and running. See January 2017 Board Transcript. After review of the evidence, the Board finds that the preponderance of the evidence shows that an initial rating higher than 10 percent for the right knee is not warranted. vThe medical evidence shows that the Veteran’s right knee disability is manifested by pain on motion. Right knee flexion was not limited to 30 degrees and extension was not limited to 20 degrees. Rather, range of motion testing of the right knee indicated normal extension with flexion limited to no less than 130 degrees. Under Diagnostic Code 5260 and 5261, the limitation of motion does not reach the level of a compensable evaluation. Instead, the Veteran has been afforded a 10 percent evaluation for painful or limited motion. Higher evaluations are not warranted. Regarding the DeLuca factors, the Board observes that VA examiners have noted the Veteran’s complaints such as pain and difficulty bending his knee or running. The Board has taken those complaints into consideration in its above discussion. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment. Even considering his subjective complaints of pain and other symptoms described in DeLuca, limitation of motion of the right knee has not been shown such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Board finds that the evidence does not support a finding that the Veteran’s right knee disability more closely approximates a 20 percent rating. In sum, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for the right knee due to limitation of motion of the knee. While the Board accepts the contentions of the Veteran that his right knee limitation of motion causes him to experience pain, providing the basis for the 10 percent evaluation, the Board has taken that into account in its consideration of the range of motion of the Veteran’s right knee. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, a greater rating is not warranted based on functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating for the time period in question. There is no evidence of ankylosis of the right knee, dislocation of semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, genu recurvatum. Accordingly, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for consideration. Accordingly, the Board finds that for the preponderance of the evidence is against the assignment of a rating greater than 10 percent for DJD of the right knee under Diagnostic Codes 5260 or 5261. 2. Entitlement to an initial compensable rating for instability of the right knee for the period from February 19, 2010 to November 27, 2016. 3. Entitlement to a rating higher than 10 percent for instability of the right knee since November 28, 2016. The reports that he has right knee instability warranting a greater evaluation than that currently assigned. The July 2010 VA examination noted that was no gross instability in the Veteran’s right knee. Additionally, the Veteran did not require assistive aids for walking. During July 2011 and March 2014 VA examinations, examiners performed anterior, posterior, medial-lateral instability tests of the Veteran’s right knee and found no instability. A review of the Veteran’s treatment records prior to November 2016 do not reveal slight right knee instability. Thus, the Board concludes that a separate or higher rating is not warranted for right knee instability under Diagnostic Code 5257 from February 19, 2010 to November 27, 2016. A November 2016 VA examination report shows that stability testing revealed right knee lateral instability of +1. The examiner described the Veteran’s right knee as normal with regard to stability, with no lateral instability or recurrent subluxation. The Veteran’s posterior and medial instability were also noted as normal. The Veteran’s knee was described as normal overall. The Veteran reported right knee instability during the July 2017 Board Hearing that required use of a brace, since his knee would “pop” out of place. Thus, the Board concludes that the overall disability picture with respect to instability most nearly approximates that of slight instability since November 28, 2016. The Veteran has credibly and consistently reported that he experiences a feeling of giving way throughout the appeal period, and the November 2016 examination contains medical evidence indicative of instability. Accordingly, a disability rating in excess of 10 percent is not warranted for the service-connected right knee disability on the basis of instability under DC 5257 since November 28, 2016. REASONS FOR REMAND 4. Entitlement to total disability based on individual unemployability from February 1, 2010 to November 27, 2016. In VA 8940 dated January 2013, the Veteran raised the issue of entitlement to total disability based on individual unemployability. While the Veteran is in receipt of a combined 100 percent rating since November 28, 2016, once entitlement to individual unemployability benefits is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant unemployability benefits for the entire period on appeal that portion of the claim that remains unresolved is still on appeal. Entitlement to total disability based on individual unemployability for the period from February 18, 2010 to November 27, 2016 is still on appeal. Id The VA 8940 dated January 2013, however, is the most recent form received from the Veteran describing his work history. The Veteran testified at the January 2017 Board Hearing that he is employed, however, the date of his current employment as well as a full history of his employment for the period under appeal is unknown. A VA 21-4192 Request for Employment Information in Connection with Claim Disability indicated that the Veteran was employed from March to November 2013, however the Veteran’s employment history after November 2013 is unclear. In this case, in light of the lack of sufficient evidence on record regarding the functional effects of the Veteran’s service-connected disabilities with regard to his ability to secure or follow substantially gainful employment, and a lack of clarity with regards to the Veteran’s employment status, work history and level of education, the Board finds that a remand is warranted prior to an adjudication on the issue of the Veteran’s entitlement to a TDIU from February 1, 2010 to November 27, 2016. The matter is REMANDED for the following action: Request from the Veteran a completed VA Form 21-8940 (TDIU application) identifying the status of his employment, level of education and employment history from February 1, 2010 to November 27, 2016. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.