Citation Nr: 21066276 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-59 313 DATE: October 29, 2021 ORDER Entitlement to a rating higher than 10 percent for left knee disability (patellofemoral syndrome) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) also is denied. FINDINGS OF FACT 1. The Veteran's left knee disability is shown to be characterized by pain, but still without ankylosis, recurrent subluxation, impairment of the tibia and fibula, or genu recurvatum; flexion has not been limited to 30 degrees or less and extension has not been limited to 15 degrees or more to warrant the next higher rating. 2. In a July 2020 letter, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, including submitting a completed application for this benefit (VA Form 21-8940) and request for employment information in connection with claim for disability benefit (VA Form 21-4192); however, he has not submitted the requested evidence and information needed to decide his appeal of this claim. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a rating higher than 10 percent for the left knee disability 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC/Code) 5260 2. The criteria also are not met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.326, 3.340, 3.341, 3.655, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2007 to April 2012. This appeal to the Board of Veterans' Appeals (Board) is from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a "virtual" teleconference hearing in May 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In June 2020, the Board remanded this left knee claim and derivative TDIU claim back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration. Entitlement to a rating higher than 10 percent for the left knee disability The Veteran's left knee disability is evaluated as 10-percent disabled under Code 5260 for limitation of flexion. According to Code 5260, a 0 percent rating is warranted when flexion is limited to 60 degrees, a 10 percent rating when limited to 45 degrees, a 20 percent rating when limited to 30 degrees, and a maximum 30 percent rating when limited to 15 degrees. Conversely, according to Code 5261, a 0 percent rating is warranted when extension is limited at 5 degrees, a 10 percent rating when limited to 10 degrees, a 20 percent rating when limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a maximum 50 percent rating when limited to 45 degrees. To give this some context, consider that normal range of motion (ROM) of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Turning now to the relevant evidence, in March 2016, the Veteran had a VA knee examination. During that examination, he reported occasional left knee pain, on average once a month. He reported popping but no locking or episodes of giving way. He had full range of motion of his left knee, without pain on weight bearing. There was no additional loss of function or range of motion after three repetitions. He also had full muscle strength of his left knee, no muscle atrophy, and no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion, and joint stability test results for this knee were normal. Further, there were no noted meniscal conditions or other pertinent physical findings. There was no arthritis documented on diagnostic imaging. During his May 2020 hearing before this Board, the Veteran testified that the range of motion of his left knee was normal but with pain. He testified that he experiences flare-ups rated at a 7 or 8 on a 1-to-10 scale. In January 2021, following remand of this claim, the Veteran again underwent a VA knee examination. He described his bilateral knee pain as constant and that his knees feel like they are separating when he walks, along with his legs giving out. He reported left knee flare-ups of moderate severity occurring a few times per week and lasting a couple of days. He described the functional impact of his bilateral knee disabilities as being unable to walk normally, cannot sleep due to pain, cannot lift more than 15 pounds, and cannot sit or stand for long periods of time. He had full range of motion of his left knee, also notably with pain not resulting in any functional loss. There was no additional loss of function or range of motion after three repetitions. On the most recent September 2021 VA knee examination, the Veteran again had full range of motion of his left knee. He was able to perform repetitive use testing with no additional functional loss or further decreased range of motion. The examiner estimated that the Veteran's left knee range of motion would be normal during a flareup. There was no history of recurrent subluxation and no evidence of joint instability. Based on the results of those several medical evaluations, there has not been any occasion when the Veteran's left knee flexion has been sufficiently restricted to warrant a higher rating for this knee, including when considering the impact of his pain on his range of motion. That is, his flexion has not been limited to 30 degrees or less, again, even when considering his pain and its impact on his range of motion, which often has been described as no effect. 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). Nevertheless, 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; 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). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. This required level of evaluation has occurred in this instance. Moreover, as the Court explained in Mitchell, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis (and, here, by additionally considering the holding in Burton), it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain, rather, provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Likewise, the Veteran's extension repeatedly has been described as normal or full, meaning to 0 degrees. His extension has not been limited to 15 degrees or more. Considering other applicable rating criteria, the Board acknowledges the Veteran's report of instability but notes that left knee subluxation or lateral instability has not been persuasively shown (in fact, to the contrary, the examinations during the evaluation period have specifically determined there is not instability or subluxation of this knee). In fact, the VA examiner has attributed any instability to the Veteran's right knee anterior cruciate ligament (ACL) tear, not instead to his left knee patellofemoral syndrome that is at issue in this appeal. Consequently, a separate rating for subluxation or instability under Code 5257 is not warranted, meaning aside from the existing rating under 5260. See English v. Wilkie, 30 Vet. App. 347 (2018). Still other Codes 5256, 5258, 5259, 5262 and 5263 also have been considered. See, e.g., Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that ratings under Codes 5257 and 5260 and 5261 do not necessarily preclude ratings under Codes 5258 and 5259, i.e., the meniscal codes). However, the evidence of record does not show that, during the evaluation period, the Veteran's left knee has been ankylosed, involved dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, or removal of semilunar cartilage, that there is nonunion or malunion of the tibia or fibula, or that there is genu recurvatum of this knee. Therefore, the Board finds that these other Codes do not apply and do not provide grounds for assigning a separate rating. 1. Entitlement to a TDIU The Veteran contends that his service-connected disabilities render him unemployable and, therefore, entitled to a TDIU. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result 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). In determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology of single accident or affecting both upper extremities or both lower extremities or a single bodily system are considered as one, collective or aggregate disability. 38 C.F.R. § 4.16(a). Service connection is currently in effect for residual tension headaches due to traumatic brain injury (rated as 30-percent disabling), right knee patellofemoral syndrome limited extension (rated as 30-percent disabling), right knee patellofemoral syndrome limited flexion (rated as 10-percent disabling), lumbar strain (rated as 20-percent disabling), dislocation, status post capsulorrhaphy, right shoulder (rated as 20-percent disabling), right wrist sprain (rated as 10-percent disabling), left knee patellofemoral syndrome (rated as 10-percent disabling), tinnitus (rated as 10-percent disabling), cervical strain with degenerative joint disease (rated as 10-percent disabling), right shoulder scars (rated as 0-percent disabling), and right shoulder recurrent dislocation (also rated as 0-percent disabling). The combined rating for these service-connected disabilities is 80 percent. Thus, the Veteran has sufficient ratings for his service-connected disabilities to meet the threshold minimum rating requirements of § 4.16(a) for schedular consideration of a TDIU. Here though, notably, on June 17, 2013, VA released a Fast Letter that is binding on the RO but not the Board. The stated purpose of which was to revise and clarify VA procedures relating to claims for a TDIU. The changes noted included the following: VA will require the claimant complete and submit a TDIU application (VA Form 21-8940) to substantiate the claim for this benefit; VA will administratively deny TDIU claims if VA requests, but the Veteran does not submit, required forms or evidence. Under the heading "Requirement for VA Forms 21-8940 and 21-4192," the following was stated: "[i]f a claim for TDIU has been expressly or reasonably raised by the evidence of record, but a current VA Form 21-8940 [so TDIU application] is not on file, provide it to the Veteran for completion. Before VA will consider a claim for IU the Veteran must complete a VA Form 21-8940, and the Veteran with multiple service-connected disabilities must specify one or more service-connected disabilities that he or she believes cause the unemployability. It was instructed that if the Veteran fails to complete and return the VA Form 21-8940, the claim would be denied." Guidance concerning that June 17, 2013, VA Fast Letter indicates that a substantially complete VA Form 21-8940 (TDIU application) is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. The form concludes with a series of sworn certification statements, and in endorsing it a Veteran both attests to his/her employment status and signals understanding of the TDIU benefit's incompatibility with substantially gainful work. A properly signed and executed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran's entitlement to a TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. Pursuant to the Board's June 2020 remand directive, the RO sent the Veteran a letter in July 2020 advising that he needed to complete a TDIU application, VA Form 21-8940, providing necessary information. A copy of the form and instructions for completing it were included. Additionally, the RO requested that he submit the additionally enclosed VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, completed by each of the employers identified on the VA Form 21-8940. To date, however, he has not submitted a completed TDIU application and all information attendant to it. The Board sees there is medical evidence of record suggesting some occupational impairment, but which is compensated by the ratings for the Veteran's several service-connected disabilities. See 38 C.F.R. § 4.1. However, since he has not completed and returned a VA Form 21-8940 (TDIU application), VA is unable to adequately develop his claim for this additional benefit by obtaining necessary information including regarding his occupational history, to make a proper determination of whether he is unemployable for purposes of receiving this benefit. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence). An August 2021 VA treatment record shows the Veteran is currently working as a truck driver. This record does not contain any evidence as to how much work he does, including in terms of hours worked, salary, or whether there is interference with his ability to work owing to his service-connected disabilities or occupational impairment above and beyond what is already compensated by the schedular ratings for his service-connected disabilities. Several precedent cases have discussed what is necessary to show inability to obtain and maintain employment that may be considered "substantially gainful" versus just marginal in comparison, also have provided guidance as to the meaning of a Veteran's ability to "secure and follow" such employment. See, e.g., Ray v. Wilkie, 31 Vet. App. 58 (2019) (explaining there are economic and noneconomic factors in this determination). Moreover, precedent cases have clarified that mere inability to obtain employment, or difficulty in doing that, is not tantamount to concluding a claimant is unemployable. See, e.g., Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, quite simply, based on the existing evidence of record, the Board is unable to make the necessary determination of whether the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. Accordingly, a TDIU must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.