Citation Nr: 21061741 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-24 187 DATE: October 5, 2021 ORDER A rating higher than 10 percent for right knee injury residuals is denied. A separate 10 percent rating for a symptomatic right knee meniscectomy is granted. A rating higher than 40 percent for dorsolumbar myositis is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Right knee injury residuals are manifested by full extension, at least 70 degrees of flexion, and no instability or subluxation. 2. The Veteran experiences occasional locking and effusion associated with a right knee meniscectomy. 3. The Veteran's dorsolumbar myositis is not manifested by unfavorable ankylosis. 4. The Veteran's service-connected disabilities do not preclude him from engaging in the acts of gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for right knee injury residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for a separate 10 percent rating for a symptomatic right knee meniscectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5259. 3. The criteria for a rating higher than 40 percent for dorsolumbar myositis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242. 4. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from October 1980 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision. It was previously remanded by the Board for additional development in August 2018. During the appeal period, the Veteran asserted that he was unable to work due to his service-connected disabilities. Therefore, a claim for a TDIU has been raised as part of his increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings Right knee injury residuals The Veteran is currently assigned a 10 percent rating for his right knee under 38 C.F.R. § 4.71a, DC 5257. Previously, under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. In this case, the criteria for a compensable rating under DC 5257 are not met. VA examinations from April 2014, December 2016, February 2019, and March 2021, all documented normal objective findings of knee stability with no history of instability or subluxation. The Veteran's VA treatment records are similarly negative for any findings of instability. Knee disabilities are also rated on limited range of motion. DC 5260 addresses limitation of flexion of the leg. A noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. DC 5261 addresses limitation of extension of the leg. A noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. At worst, flexion was limited to 70 degrees during a December 2016 VA examination. Additional VA examinations and treatment records from the appeal period documented knee flexion greater than 100 degrees. Similarly, all range of motion testing from the appeal period documented full extension (i.e., 0 degrees). Collectively, these findings included consideration for repetitive testing and the onset of pain. The most recent examination provided estimates for range of motion with repetitive use over time and during flare-ups. Therefore, the criteria for compensable ratings under DC 5260 or DC 5261 are not met. It is the intent of the rating schedule to recognize actually painful joints as entitled to the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the 10 percent rating assigned under DC 5257 satisfies this criteria, notwithstanding the fact that the rating criteria for compensable ratings under DCs 5257, 5260 and 5261 are not otherwise met. Symptomatic right knee meniscectomy DC 5259 provides a single 10 percent rating for symptomatic removal of the semilunar cartilage. The Veteran's service treatment records and subsequent VA examination reports show he underwent a meniscectomy in service. VA treatment records from December 2016 document a small effusion in the knee, and the Veteran reported a "locking" sensation in August 2018. Therefore, the Board finds that the criteria for a separate 10 percent rating under DC 5259 are met. The Board has considered the higher 20 percent rating available under DC 5258, which addresses dislocated semilunar cartilage. However, those criteria require "frequent" episodes of locking, pain and effusion into the knee joint. As discussed above, the evidence regarding locking and effusion from the appeal period is quite limited, and therefore does not meet the "frequent" criterion. Dorsolumbar myositis The Veteran's lumbar spine disability is rated under the General Rating Formula for Injuries and Diseases of the Spine found in 38 C.F.R. § 4.71a. He is presently assigned a 40 percent rating. A higher 50 percent rating is assigned under the General Rating Formula for unfavorable ankylosis of the entire thoracolumbar spine. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). Note (5) of the General Rating Formula states that, for VA compensation purposes, unfavorable ankylosis is a condition in which the thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. The Veteran underwent VA examinations in April 2014, September 2015, March 2021 and May 2021. These examinations unanimously found that the Veteran did not have any ankylosis. His outpatient VA records also show no diagnosis of lumbar spine ankylosis. There is also no indication that the Veteran manifests any of the characteristics of unfavorable ankylosis identified above. Therefore, a rating higher than 40 percent is not warranted. The General Rating Formula also provides that neurologic abnormalities associated with a spine disability are to be separately rated. The Veteran has already been assigned separate 10 percent ratings for his left and right lower extremity radiculopathy effective from March 10, 2021. Prior to that date, he had not been diagnosed with radiculopathy. VA examinations from April 2014 and September 2015 specifically found that the Veteran had no signs or symptoms of radiculopathy, and his VA treatment records are otherwise negative for any such diagnoses. From March 10, 2021, he is assigned 10 percent ratings for his bilateral radiculopathy under 38 C.F.R. § 4.124a, DC 8520, which addresses paralysis of the sciatic nerve. Mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The March 2021 and May 2021 VA examinations both documented normal strength, reflexes, and sensation in the lower extremities. The March 2021 examiner noted moderate intermittent pain. Otherwise, both examiners assessed only mild levels of pain, paresthesias and numbness. Given the normal objective findings and predominantly mild symptoms, the Board finds that the overall severity of the Veteran's bilateral radiculopathy is mild. The singular finding of moderate intermittent pain, alone, does not result in an overall moderate level of incomplete paralysis. As a final matter, the Board has also considered rating the Veteran's spine condition under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, Note (1) of that formula states that ratings are based on episodes requiring bed rest prescribed by a physician. The evidence does not reflect any prescribed bed rest, so a rating under this formula is not appropriate. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the claimant is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). During the appeal period, the Veteran has been service-connected for dorsolumbar myositis, right shoulder strain, a right knee injury, gastroesophageal reflux disease (GERD), and bilateral lower extremity radiculopathy. His dorsolumbar myositis is rated at 40 percent and his combined rating is 70 percent after implementing the above grant of a separate rating for a symptomatic right knee meniscectomy. Therefore, he meets the schedular criteria for a TDIU. The main question in determining whether a TDIU is warranted is "whether a veteran can perform the physical and mental acts required by employment." Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19. The evidence of record, including the Veteran's TDIU applications, vocational rehabilitation records, and VA treatment records, show that he has an associate's degree in computer programming. His last job was for the Census Bureau from 2009 through 2010 as a supervisor in office operating systems. He also had prior experience as a salesman and handyman. Regarding functional impairment, the evidence collectively shows that his GERD, orthopedic, and neurologic disabilities limit his ability to lift and carry more than 15 pounds; engage in any prolonged standing or walking; climb stairs; run or physically exert himself; operate machinery requiring foot controls for prolonged periods; or use his right arm constantly for pushing or pulling. If seated, he would need to change positions frequently. The Board finds that a TDIU is not warranted. The Veteran's functional impairments limit his ability to engage in physical activity. However, his background in computer programming and prior employment as a supervisor in office operating systems means he is qualified to work at a job with minimal physical demands that should be compatible with the limitations identified above. His 70 percent combined disability rating contemplates a significant impairment in earning capacity and is considered adequate to compensate for a considerable loss of working time. 38 C.F.R. §§ 4.1. However, the evidence does not show that his service-connected disabilities preclude him from engaging in gainful employment. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.