Citation Nr: 21061287 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 16-19 128 DATE: October 1, 2021 ORDER For the entire increased rating period on appeal from July 22, 2014, an increased disability rating of 20 percent, but no higher, for the service-connected right knee disability is granted. For the entire increased rating period on appeal from July 22, 2014, an increased disability rating of greater than 10 percent for the service-connected left knee disability is denied. REMANDED From July 22, 2014, a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran is service connected for retropatellar pain syndrome, right knee, degenerative joint disease, status post meniscal tear and anterior cruciate ligament tear (right knee disability). 2. For the entire increased rating period on appeal from July 22, 2014, the symptomatology and functional impairment of the service-connected right knee disability most nearly resembled dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; the symptomatology and functional impairment did not more nearly approximate compensable limitation of flexion or extension, ankylosis, or recurrent subluxation or lateral instability. 3. The Veteran is service connected for retropatellar pain syndrome, left knee, degenerative joint disease (left knee disability). 4. For the entire increased rating period on appeal from July 22, 2014, the symptomatology and functional impairment of the service-connected left knee disability manifested as arthritic, painful, and noncompensable limitation of flexion; it did not manifest as flexion limited to 45 degrees, extension limited to 10 degrees, ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, or genu recurvatum. CONCLUSIONS OF LAW 1. For the entire increased rating period on appeal from July 22, 2014, the criteria for an increased disability rating of 20 percent, but no higher, for the service-connected right knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5258. 2. For the entire increased rating period on appeal from July 22, 2014, the criteria for an increased disability rating of greater than 10 percent for the service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from December 1984 to July 1987. The instant matters are on appeal from a January 2015 rating decision that, in pertinent part, denied an increased rating for a right knee disability and denied a compensable rating for a left knee disability. The matters have been before the Board of Veterans' Appeals (Board) previously. In an October 2019 remand, the Board remanded the matters for updated VA treatment records and an updated VA examination. The Board also inferred a claim for a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). After the remand, the RO raised the disability rating for the left knee disability to 10 percent and denied the TDIU. The Board finds that there has been substantial compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The claims for an increased rating for the right and left knee disability are ripe for adjudication. The claim for a TDIU requires additional development and is addressed in the REMAND section below. The Veteran testified at a Board hearing before a different Veterans Law Judge (VLJ) in June 2019. The hearing transcript has been associated with the claims file. The VLJ who conducted that hearing no longer works for the Board. In a July 2021 letter, the Veteran was informed of the right to have another hearing, but did not request one. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved 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. The most appropriate diagnostic codes for rating limitation of motion of the knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5256, ankylosis of the knee that is in the favorable angle in full extension, or is in slight flexion between 0 degrees and 10 degrees, warrants a 30 percent disability rating. Ankylosis of the knee in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating. Ankylosis of the knee in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more, warrants a 60 percent rating. A 60 percent rating is the maximum schedular disability rating available under Diagnostic Code 5256. Id. Ankylosis is the immobility and consolidation of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such 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 assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. 38 C.F.R. § 4.71a was amended effective February 7, 2021. The amendment pertaining to the knees concerns Diagnostic Code 5257, which provided explicit definitions and ratings for different degrees of recurrent subluxation or lateral instability and for patellar instability. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). 1. Rating the Right Knee Disability The right knee disability is currently rated as 10 percent disabling pursuant to Diagnostic Code 5261 under the substantive rating criteria of Diagnostic Code 5003. The initial rating was not actually provided under the Diagnostic Code 5261 rating criteria as the right knee at no point, even with pain, produced limitation of extension that met the 10 percent rating criteria under Diagnostic Code 5261. The evidence reflects that the right knee demonstrated arthritic painful noncompensable limitation of flexion, which would have warranted a 10 percent disability rating under the substantive criteria of Diagnostic Code 5003. See, e.g., February 2011 VA examination; June 2012 VA examination. The Veteran contends generally that a higher rating than 10 percent is warranted for the right knee disability because he continues to experience pain and limitation of motion in the right knee. For the entire increased rating period on appeal from July 22, 2014, the right knee disability most nearly approximated dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint for a rating pursuant to Diagnostic Code 5258. For this reason, the Board is changing the diagnostic code to 5258 (dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint) at that change provides for a higher 20 percent disability rating for the right knee disability. The evidence includes that, at the March 2021 VA examination, the VA examiner noted that the Veteran had a meniscal tear with frequent episodes of joint locking, status post right meniscal tear debridement arthroscopically on September 15, 2011. During the June 2019 Board hearing, the Veteran confirmed that his right knee locks routinely, when explaining that falls due to locking seem to be the cause for the now-service-connected left ankle disability. See June 2019 Hearing Transcript. In June 2015 Correspondence, the Veteran stated that he had trouble with the left ankle for 30 years due to the right knee locking, which forced him to trip and twist his left ankle. The record is filled with references to pain related to the right knee. See, e.g., December 2019 VA Treatment Note; August 2019 VA Treatment Note. A November 2019 MRI of the right knee showed mild surrounding edema around the medial cruciate ligament and small joint effusion with synovitis. Resolving reasonable doubt in the Veteran's favor, the totality of the evidence supports an increased 20 percent disability rating pursuant to Diagnostic Code 5258. The weight of the evidence is against a rating under any other diagnostic code. There is no evidence of ankylosis (Diagnostic Code 5256) or genu recurvatum (Diagnostic Code 5263). See January 2016 VA Examination; April 2016 VA Examination; March 2021 VA Examination. None of the examinations and none of the VA treatment records showed compensable limitation of flexion or extension, much less to the extent of a greater than 20 percent rating. See id. Although the Veteran used the language of "right knee instability" in the January 2015 Notice of Disagreement, he did not elaborate on that phrase at any point, including at the Board hearing, and the testing in the VA examinations did not demonstrate actual instability. 2. Rating the Left Knee Disability The Veteran also appeals for an increased disability rating for the left knee disability. The left knee was assigned a 10 percent disability rating pursuant to Diagnostic Code 5003-5260. The choice of Diagnostic Code 5003 is accurate, but the hyphenated 5260 is not, as the record does not show that the criteria for a compensable limitation of flexion are met at any point (under 5260). As such, the Board will change the Diagnostic Code to 5003, for the reasons given below, in order to show the actual rating criteria that was used when the 10 percent rating was initially assigned. In the most recent March 2021 VA examination, the left knee disability manifested as flexion limited to 70 degrees, extension to 0 degrees, and no additional loss of function or range of motion after three repetitions. The Veteran did not report left knee flare-ups and the evidence did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time. There was no evidence of recurrent subluxation, patellar instability, atrophy, ankylosis, or joint instability. In short, the evidence from the March 2021 VA examination is consistent with a 10 percent rating pursuant to Diagnostic Code 5003 for painful, arthritic noncompensable limitation of motion, including noncompensable limitation of flexion, but no higher. The two earlier VA examinations during the increased rating period on appeal also do not support a higher rating than 10 percent as they do not show compensable limitations of motion. In April 2016, the initial range of motion for the left knee was normal, with no pain noted on the examination, and no change in functional loss or range of motion after three repetitions. In January 2016, the results were the same. As with the right knee, the Veteran used the phrase "left knee instability" in the January 2015 Notice of Disagreement, but did not elaborate on that phrase at any point, including at the Board hearing, and the testing in the VA examinations did not demonstrate instability. The Veteran also testified explicitly at the Board hearing that the left knee did not lock like the right. In short, the weight of the evidence, lay and medical, is against a disability rating of higher than 10 percent for the service-connected left knee disability. REASONS FOR REMAND 3. From July 22, 2014, a TDIU is Remanded. In the October 2019 remand, the Board inferred a claim for a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the claim for additional development, as there had not been a TDIU claim form (VA Form 21-8940) completed or any other development by the RO, to include acquiring updated VA treatment records and obtaining Social Security records. At this point, the claim for a TDIU is still not ripe. The Veteran submitted an incomplete TDIU claim form. In the second page of the form, received April 2021, the Veteran stated "N/A" for the last five years of employment prior to becoming disabled. It appears that the Veteran may have misunderstood the form, as the request is for the last five years of employment prior to disabilitywhenever that happened to benot simply the last five years. As the Veteran receives Social Security disability benefits based on qualifying work history, it is clear that the Veteran has a work history that has not been provided. The VA examinations also reference some past work experience. A complete TDIU claim form is a prerequisite to adjudicating the claim for a TDIU. The Veteran should be provided with a new form. The Veteran should also be counseled that failure to provide a complete form can result in denial of the claim. After the Veteran has returned the completed TDIU claim form, any additional development should be completed, to include soliciting information from listed prior employers (VA Form 21-4192). Then, the RO should readjudicate the claim for a TDIU. In readjudicating the claim, the RO should keep in mind that the Veteran receives Social Security disability benefits on the basis of his service-connected left ankle disability and his service-connected bilateral knee disabilities. The RO should also bear in mind that the March 2021 VA examiner stated that the Veteran's service-connected disabilities "affect his ability to function in an occupational environment by way of the inability to sit, stand, walk, ambulate, lift, push, pull, carry five pounds for greater than five minutes at a time, without being in significant pain and discomfort. These identified functional impairments impact his occupational and employment activities up to and including sedentary work." The issue of TDIU is REMANDED for the following actions: Provide the Veteran with a new TDIU claim form (VA Form 21-8940) and instructions that the request for information on the last five years of employment on the second page needs to be completed regardless of when the last five years were. The Veteran should be instructed that failure to supply a complete form can result in denial of the TDIU claim. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.