Citation Nr: 21062989 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-42 745 DATE: October 12, 2021 ORDER Entitlement to a rating in excess of 10 percent for medial instability, right knee prior to November 1, 2018 is denied. Entitlement to an increased rating in excess of 10 percent for medial instability, left knee prior to August 3, 2017 is denied. Entitlement to a total disability based on individual unemployability (TDIU) from May 18, 2015 is granted. REMANDED Entitlement to a TDIU prior to May 18, 2015 is remanded. FINDINGS OF FACT 1. Prior to November 1, 2018, the Veteran's medial instability, right knee is manifest by slight instability. 2. Prior to August 3, 2017, the Veteran's medial instability, left knee is manifest by slight instability. 3. From May 18, 2015, the preponderance of the evidence of record demonstrates that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for medial instability, right knee prior to November 1, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for entitlement to an increased rating in excess of 10 percent for medial instability, left knee prior to August 3, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. The criteria for entitlement to a TDIU from May 18, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from December 1979 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in June 2021. A transcript of the proceeding has been associated with the claims file. The Veteran filed a claim for an increased rating for medial instability, right knee and service connection for the left knee, received by the VA on December 10, 2013. In a March 2015 rating decision, the RO granted the Veteran an increased rating for the right knee to include a separate compensable rating of 10 percent for limitation of flexion of the right knee and continued the 10 percent rating for right knee instability. Additionally, the Veteran was granted service connection for left knee instability and left knee limitation of flexion, each evaluated at 10 percent effective December 10, 2013. Within the year of the March 2015 rating decision, the Veteran submitted new and material evidence in August 2015 indicating that his service-connected disabilities, including the left knee and right knee impaired his ability to maintain substantially gainful employment. See 38 C.F.R. § 3.156 (a). Additional evidence was submitted in support of his claim, including Social Security Administration records received in October 2015 and an updated VA examination for the left and right knees completed in November 2015. The Board concludes that new and material evidence was submitted prior to the expiration of the appeal period and is considered as having been filed in connection with the December 2013 claim. See 38 C.F.R. § 3.156 (b). Therefore, the Board finds that the Veteran's claims on appeal, including his claims for increased ratings for medial instability of both the right and left knees, as well as the claim for a TDIU have been pending since receipt of the December 10, 2013 claim. During the pendency of the appeal, in an August 2017 rating decision, the Veteran was awarded a 100 percent rating for a total left knee replacement effective August 3, 2017, and an evaluation of 30 percent was assigned from September 30, 2018. His separate ratings for medial instability and limitation of flexion, left knee were discontinued. In a December 2018 rating decision, the Veteran was awarded a 100 percent rating for a total right knee replacement effective November 1, 2018. His separate ratings for medial instability and limitation of flexion, right knee were discontinued. Thereafter, in a July 2019 rating decision, the RO reinstated the Veteran's 10 percent ratings for both right and left knee medial instability, which were decreased to 0 percent effective October 2015. The RO determined that they erred when reducing the Veteran's ratings for right knee and left knee medial instability from 10 percent to 0 percent. The ratings were reinstated from October 27, 2015 to August 3, 2017 for the left knee and from October 27, 2015 to November 1, 2018 for the right knee. The Board concludes that the RO's actions do not constitute a full grant of the benefits sought and the Veteran has not expressed satisfaction with the increased ratings; therefore, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). 1. Entitlement to a rating in excess of 10 percent for medial instability, right knee prior to November 1, 2018 2. Entitlement to an increased rating in excess of 10 percent for medial instability, left knee prior to August 3, 2017 The Veteran contends that his symptoms warrant a higher rating than reflected in his current evaluation. Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate 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). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's right knee and left knee medial instability is evaluated under Diagnostic Code 5257, other knee impairment. 38 C.F.R. § 4.71a. Although the rating schedule for evaluating musculoskeletal disabilities was amended effective February 7, 2021, the Board's review is limited to evidence prior to February 7, 2021; thus, there is no evidence to consider under the new criteria. Under Diagnostic Code 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Evidence relevant to the Veteran's claim includes a February 2015 VA examination. Upon joint stability testing, the Veteran's anterior instability (Lachman test) was 1+ (0-5 millimeters) on both the right and left knees. The medial-lateral instability test was also 1+ (0-5 millimeters) on both the right and left knees. The examiner opined that the degree of severity for both the right and left knees is slight. There was no evidence of patellar subluxation/dislocation. The examiner also noted evidence of acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing affecting both the right and left knees. The symptoms were described as weakness when walking. The Veteran was afforded another VA examination in November 2015. The examiner noted that the Veteran did not have a history of recurrent subluxation or lateral instability. Upon joint stability testing, the Veteran's medial instability was 1+ (0-5 millimeters) on both the right and left knees. The Veteran's VA treatment records include a May 2012 complaint of right knee medial instability, which is controlled with a brace. The examining physician noted decreased strength in both of the Veteran's knees. In February 2013, the Veteran complained of instability in the knee and continued use of knee braces. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for both right and left knees medial instability. The Board has carefully considered the Veteran's reports included in his VA treatment records about knee instability. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms have not varied throughout the duration of the appeal, and do not suggest the presence of symptoms more nearly approximating moderate severity. In both the February 2015 and November 2015 VA examinations, the Veteran's instability was noted as "slight." The evidence indicates that the Veteran used braces to support his knees, but there is no evidence to suggest that the severity of his knee instability increased to warrant a 20 percent. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See 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 paying compensation twice for the same symptoms or functional impairment). However, here, the Veteran's appeal was limited to increased ratings for medial instability of both knees. See November 2016 notice of disagreement; see also 38 C.F.R. § 19.21 (a)(4). The Board also notes that the February 2015 examiner noted signs and symptoms related to genu recurvatum, included weakness of the knees. However, a separate compensable rating unde Diagnostic Code 5263 for genu recurvatum would violate the rule against pyramiding as the 10 percent rating under Diagnostic Code 5257 accounts for the Veteran's knee weakness and use of braces to support the knees. See 38 C.F.R. § 4.14. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for medial instability of both the right and left knees. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a TDIU from May 18, 2015 The Veteran contends that his service-connected disabilities prevent him from securing or maintaining substantially gainful employment. A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, in a recent precedential decision issued by the United States Court of Appeals for Veterans Claims (Court), they offered guidance in defining "unable to secure and follow a substantially gainful occupation." In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court found that 38 C.F.R. § 4.16 (b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. From May 18, 2015, the Veteran established service connection for adjustment disorder with anxiety and depression associated with thoracolumbar degenerative disc disease rated as 50 percent disabling, thoracolumbar degenerative disc disease rated as 20 percent disabling, left lower extremity radiculopathy rated as 20 percent disabling, left knee medial instability rated as 10 percent disabling, right knee medial instability rated as 10 percent disabling, left knee limitation of flexion rated as 10 percent disabling, right knee limitation of flexion rated as 10 percent disabling, bilateral tinnitus rated as 10 percent disabling, right lower extremity radiculopathy rated as 10 percent disabling; and bilateral hearing loss and right knee meniscectomy scars rated as noncompensable. The Veteran's combined rating for compensation purposes is 90 percent. 38 C.F.R. §§ 4.25, 4.26. Therefore, the Veteran meets the schedular rating criteria for TDIU. 38 C.F.R. § 4.16 (a). The remaining inquiry is whether he was unable to secure or follow substantially gainful occupation due solely to his service-connected disabilities. In the August 2015 Application for Increased Compensation Based on Unemployability, the Veteran worked as a licensed vocational nurse at a state hospital for over 20 years. He indicated that he left his job in July 2012 due to his service-connected disabilities. In his October 2012 Function Report submitted to Social Security Administration, the Veteran stated that the combination of his conditions limits his ability to work and perform efficiently and safely. He noted that he is required to visit the doctor for his appointments, which interferes with work performance. The Veteran stated his lower extremity and back problems have limited his mobility, and he is unable to stand or sit for long periods of time. He also stated that he is unable to squat or bend without pain in his knees. The Veteran stated that he cannot sleep due to the pain from his conditions and his inability to sleep results in increased fatigue, sleepiness, irritability, and difficulty concentrating. The Veteran's duties as a licensed vocational nurse include medication administration, assessment of care, treatment and general welfare of patients, documentation, safety and risk management, bedside care, and lifting patients from the bed to a wheelchair, lifting patients to dress, turn, and walk. He contended that his physical limitations interfere with his essential job functions and he is unable to respond or perform effectively during crises or psychiatric emergencies at the state hospital. During the June 2021 Board hearing, the Veteran reiterated that his physical limitations prevent him from performing his job. He testified that he was unable to physically or mentally perform the duties and responsibilities of his job and other employees had to help him complete his tasks. He also testified that he experienced severe and radiating pain to legs, and he was unable to squat, kneel, stoop, or use proper body mechanics to lift, carry, or push with use of his back or knees. He felt he was compromising the safety and well-being of patients and other employees since he could not perform his job duties. The Veteran testified that he has looked for other jobs, but he does not meet the physical requirements due to his back and knees. The examiner for the Veteran's February 2015 VA examinations for his knees and back opined that the Veteran's disabilities impact his ability to complete occupational tasks, specifically that the Veteran has limitations with walking, sitting, and standing. The May 2017 examiner also opined that the Veteran's back and peripheral neuropathy disabilities impact his ability to perform his occupational tasks as he is unable to stand, walk, or sit for prolonged periods due to increased pain. The February 2015 and October 2015 VA examination for hearing loss and tinnitus also noted functional impairment as the Veteran has difficulty with daily conversations due to his hearing loss. Additionally, the Veteran's tinnitus prevents him from getting enough rest at night and causes him to become anxious. The Veteran is also service-connected with adjustment disorder associated with his chronic pain for his service-connected disabilities. The June 2015 VA examiner opined that the Veteran's condition results in occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. During the examination, the Veteran stated that his pain keeps him from sleeping and his medications for pain impact his alertness and memory. During the October 2015 VA examination for the Veteran's adjustment disorder, the examiner opined that the Veteran's condition results in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he has difficulty getting out of bed due to high levels of pain, low energy, and motivation. He also reported sleep problems due to pain and feelings of embarrassment about his physical limitations and mobility. Based on the foregoing, the Board finds that the preponderance of the evidence supports a finding that the Veteran's service-connected disabilities render him unemployable. Specifically, the evidence suggests that the Veteran is physically unable to perform the duties required of a licensed vocational nurse. The evidence indicates that the Veteran has specific training and skills as a vocational nurse and has being working as a nurse for over 20 years. The Veteran's pain and physical limitations prevent him from safely and effectively caring for patients. The evidence indicates that the Veteran is unable to transport patients or lift patients, which are required tasks of his job as described in his October 2012 Social Security Application. Also, the February 2015 and May 2017 VA examiners opined that the Veteran's back and knee disabilities impact his ability to perform his occupational tasks. Additionally, the Veteran is mentally unable to perform the duties required of a vocational nurse, as his pain results in fatigue, which impacts the Veteran's ability to safely administer medication to patients or complete documentation for patients. Therefore, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Accordingly, a TDIU is warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS FOR REMAND 1. Entitlement to a total disability based on individual unemployability prior to May 18, 2015 is remanded. From December 10, 2013 to May 18, 2015, the Veteran's combined total for his service-connected disabilities is 60 percent. The Veteran does not meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, as there is a reasonable possibility that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU for the period from December 10, 2013 to May 18, 2015 to VA's Director of Compensation Service for extraschedular consideration. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.