Citation Nr: 21063401 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-47 956 DATE: October 14, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to November 20, 2019, and in excess of 60 percent therefrom, for a left knee disability, is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to June 26, 2017, is remanded. FINDINGS OF FACT 1. Prior to November 20, 2019, the Veteran's left knee disability manifested by flexion limited to, at worst, 90 degrees and pain. 2. The amputation rule precludes a rating in excess of 60 percent for the knee. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent prior to November 20, 2019 for right knee arthritis, and in excess of 60 percent therefrom, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1990 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in May 2019, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. Increased Rating Left Knee Disability The Veteran seeks higher ratings for her left knee disability, as her symptoms are worse than those contemplated by the currently assigned ratings. At a July 2015 VA examination, the Veteran reported an increase in knee pain that is daily and constant. She noted that she is unable to sleep due to the pain. She endorsed symptoms of daily constant pain, soreness, achiness, stiffness, and swelling, which have all increased in severity and gotten worse. The Veteran reported that she has to wear braces on her knees to help with stability. She denied flare-ups of the left knee. Upon physical examination, left knee range of motion (ROM) testing revealed flexion and extension to 90 degrees. Pain was noted on flexion and there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing and evidence of crepitus. The Veteran was able to perform repetitive testing, and there was no additional limitation of motion following repetition. Less movement than normal and weakened movement were identified as additional contributing factors of disability. Muscle strength testing showed active movement against some resistance. There was no muscle atrophy. There was no ankylosis of the left knee. There was no joint instability of the left knee. The Veteran did not have any meniscal condition of the left knee. The Veteran constantly used a brace for assistance with ambulation. At a June 2017 VA examination, the Veteran reported that her left knee disability had progressed since its onset. She reported flare-ups that were marked by constant pain with increased pain and swelling. Upon physical examination, left knee ROM testing revealed normal flexion and extension, however, there was pain noted on flexion and extension. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing and evidence of crepitus. The Veteran was able to perform repetitive testing, and there was no additional limitation of motion following repetition. Less movement than normal and swelling were identified as additional contributing factors of disability. Muscle strength testing showed active movement against some resistance. There was no muscle atrophy. There was no ankylosis of the left knee. There was no joint instability testing done for the left knee. The Veteran did not have any meniscal condition of the left knee. The Veteran constantly used a wheelchair and a brace for assistance with ambulation. At a November 2019 VA examination, the Veteran reported constant nerve pain and spasms. She reported flare-ups of the left knee that occur multiple times a week, which are severe. The left knee flare-ups last a day to a week and are precipitated by any use of leg, air blowing on the leg, cold weather, moving the knee, or bending the knee. Upon physical examination, left knee ROM testing revealed flexion to 55 degrees and extension to 40 degrees. There was pain noted on flexion and extension. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing and evidence of crepitus. Pain, weakness, fatigability, and a lack of endurance were found to significantly limit functional ability with repeated use over a period of time. Muscle strength testing showed active movement against some resistance. There was no muscle atrophy. There was ankylosis of both knees, but there was no joint instability in either knee. The Veteran did not have any meniscal condition of the left knee. The Veteran constantly used a wheelchair and a brace for assistance with ambulation. A review of the record shows that the Veteran received treatment for her left knee disability at the VA medical center and with provide medical providers. However, a review of the treatment notes of record do not show the Veteran to have symptoms of her left knee disability worse than those reported at her VA examinations. The Board finds that prior to November 20, 2019, the Veteran is not entitled to a rating in excess of 10 percent for a left knee disability. In this regard, there is no indication from the record that the Veteran has limitation of flexion to 45 degrees or less, or limitation of extension to 10 degrees or more. In fact, the Veteran has consistently been shown to have left extension knee extension and left knee flexion limited to, at worst, 90 degrees. Further, the Board acknowledges that the Veteran experiences additional limitation due to pain following repeated use over a period of time and during flare-ups. However, the additional limitation of motion caused by such pain was accounted for by the VA examiner when reporting the Veteran's functional limitations. As such, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of a higher rating. Accordingly, entitlement to an initial rating in excess of 10 percent for left knee arthritis is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261. Consideration has been given to assigning additional compensable, or higher ratings under other diagnostic codes pertaining to the knee. However, there is no indication from the record that the Veteran has left knee instability, a disability affecting the left knee semilunar cartilage, surgical removal of left knee semilunar cartilage, impairment of the tibia and fibula, shin splints, or genu recurvatum. As such, additional compensable or higher ratings under other diagnostic codes pertaining to the knee are not warranted in this case. 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5258, 5259, 5262, 5263 (2020). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 10 percent prior to November 20, 2019, for a left knee disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, there is no basis for a rating in excess of 60 percent from November 20, 2019. Indeed, the amputation rule under 38 C.F.R. § 4.68 precludes assignment of a rating higher than 60 percent. Finally, the Board acknowledges changes to the rating schedule effective in February 2021 but these do not require consideration, as a rating higher than 60 percent is not possible in any event. REASONS FOR REMAND Entitlement to a TDIU prior to June 26, 2017 The Veteran maintains that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Initially, the Board notes that prior to June 26, 2017, the Veteran does not meet the schedular criteria for assignment of a TDIU. Nevertheless, it is VA's established policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). The evidence of record indicates that the Veteran last worked in February 2015, and that he stopped working as a result of his service-connected ankle and knee disabilities. Specifically, in the VA examinations of record, the Veteran reported that her disabilities prevent her from walking, running, standing, performing physical labor, climbing stairs or ladders, bending, kneeling, or driving for prolonged periods. As there is evidence that the Veteran was unable to work due to his service-connected ankle and knee disabilities, the Board remands this matter for referral to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. The matters are REMANDED for the following action: 1. Refer the claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). 2. Then, readjudicate the appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. ERIC S. LEBOFF Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.