Citation Nr: 21068173 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-22 964A DATE: November 9, 2021 ORDER Entitlement to a 30 percent rating prior to January 8, 2021 for right knee instability with muscle atrophy is granted. Entitlement to a rating greater than 30 percent beginning January 8, 2021 for right knee instability with muscle atrophy is denied. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 10 percent prior to January 8, 2021, and in excess of 20 percent thereafter, for right knee osteoarthritis, is remanded. Entitlement to a compensable rating for right knee, limitation of extension, is remanded. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to a rating in excess of 20 percent for left knee instability is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy, right lower extremity, is remanded. FINDINGS OF FACT 1. Prior to January 8, 2021, the Veteran's right knee instability was manifested by severe instability. 2. Beginning January 8, 2021, the Veteran is in receipt of the maximum schedular rating available for right knee instability. 3. The Veteran's service-connected disabilities cause the need for regular aid and attendance of another person. 4. The Veteran's service-connected disabilities preclude the Veteran from securing and following gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for right knee instability prior to January 8, 2021 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5257 (2020). 2. The criteria for a rating greater than 30 percent for right knee instability beginning January 8, 2021 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5257 (2020). 3. The criteria for entitlement to SMC for aid and attendance have been met. 38 U.S.C. §§ 1114 (l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a) (2020). 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.16(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. As a threshold matter, the Board notes that new evidence was added to the record after issuance of the March 2018 Statement of the Case (SOC), to include a May 2021 VA knee examination, and the Veteran has not waived initial consideration by the RO. The Board recognizes that the Veteran's increased rating claims for his right and left knees were readjudicated in a May 2021 rating decision; however, the May 2021 knee examination was not noted as considered in the readjudication. Moreover, VA treatment records were associated with the record in August 2021 after issuance of the SOC which are relevant to the Veteran's claims. Because the examination and treatment records were not submitted by the Veteran, and neither the Veteran nor his representative has indicated waiver of review by the RO, the Board finds that this evidence should be reviewed in the first instance by the RO. 38 U.S.C. § 7105. The Board notes, however, that the issue of an increased rating for right knee instability, entitlement to TDIU, and entitlement to SMC will be adjudicated in the decision herein. Since the Veteran has been awarded a full grant of benefits sought for these claims, he will not be prejudiced and readjudication is not necessary. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as, industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2017). When evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and when those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 20 percent prior to January 8, 2021, and in excess of 30 percent thereafter for right knee instability with muscle atrophy. The Veteran is seeking an increased rating for his right knee instability which has been evaluated under Diagnostic Codes 5003-5257. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5003 rates degenerative arthritis. 38 C.F.R. § 4.71a. Diagnostic Code 5257 rates on the basis of recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Slight recurrent subluxation or lateral instability of the knee is rated as 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated as 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated as a maximum 30 percent disabling. Id. The Board observes that the words "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board notes, however, that the criteria for rating musculoskeletal disabilities, including disabilities of the knee, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. Effective February 7, 2021, Diagnostic Code 5257 was amended to remove the language "slight," "moderate," and "severe." In addition, a rating was added for patella instability. The current regulation provides ratings for recurrent subluxation or lateral instability as follows: A 30 percent rating requires "unrepaired or failed repair of complete ligament tear causing persistent instability" and that a medical provider prescribes both an assistive device and bracing for ambulation. A 20 percent rating requires (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability. Both require a prescribed assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear causing persistent instability without prescribed assistive device or bracing for ambulation. For patellar instability, a 30 percent rating requires "a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker." A 20 percent rating requires a diagnosed condition with one of either a brace, cane, or walker. A 10 percent rating requires a diagnosed condition that does not require a prescription from a medical provider for a brace, cane, or walker. Merits At the outset, the Board notes that the Veteran is in receipt of a 30 percent rating for the period beginning January 8, 2021, which is the maximum rating available for instability. Therefore, there is no legal basis upon which to award a higher rating on a schedular basis. Neither the Veteran nor his representative has raised any other theory of entitlement, nor is any such theory reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, the Board finds that the Veteran's claim for an increased rating for right knee instability beginning January 8, 2021 must be denied for lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430. Alternatively, for the period prior to January 8, 2021, the Board finds an increased rating is warranted. The Board initially notes that in his March 2017 VA knee examination, the examiner found that the Veteran's right knee exhibited slight lateral and slight medial instability. Conversely, in his July 2021 hearing, the Veteran contended that his right knee is more severe as he testified that his right knee has caused him to fall at least 30 to 40 times in the past two years. He also testified that his right knee swells on a regular basis to the point where he has been hospitalized, and he has received steroid shots. He further testified that he graduated from a manual wheelchair to a motorized chair to assist with ambulating without falling. In considering the competing evidence, the Board notes that in the Veteran's March 2017 VA knee examination, the Veteran reported that his right knee has progressively worsened with time and has led to difficulty with prolonged ambulation, standing, climbing stairs and ladders, and performing impact activities. Additionally, in a March 2018 VA medical visit, the Veteran reported right knee pain worsening and that the pain is worse when he stands up and walks. The examiner in that visit noted that the Veteran had tenderness to palpation over the right knee joint and crepitus. The examiner further noted that the Veteran ambulates in a wheelchair and has difficulty standing. Moreover, an August 2018 VA treatment record noted that the Veteran has right knee pain that prevents him from ambulating, and he has to use a power wheelchair due to falling. The Board recognizes that aside from the Veteran's March 2017 knee examination, the evidence does not specifically note the severity of his right knee instability. However, a December 2019 VA treatment record noted that the Veteran's right knee arthritis necessitates an electric wheelchair which would reasonably suggest that the Veteran's right knee instability is more than "slight." Furthermore, despite the March 2017 VA examiner finding that the Veteran's right knee exhibited slight instability, the examiner otherwise found that the Veteran uses a wheelchair and brace constantly, and he has severe tricompartmental osteoarthritis of the right knee and atrophy of disuse, which would further contribute to the instability of the Veteran's right knee. As a result, the Board finds the evidence is in equipoise. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds a 30 percent rating is warranted for right knee instability for the period prior to January 8, 2021. The Board has considered the application of the regulation change; however, as the Veteran has been awarded the maximum rating available under the old and new regulation, application of the new criteria is not necessary. 2. Entitlement to SMC based on aid and attendance/housebound. The Veteran has asserted that his service-connected disabilities cause him to need the regular aid and attendance of another person, entitling him to SMC under 38 U.S.C. § 1114 (l), which may be established based on the need for aid and attendance. See also 38 C.F.R. §§ 3.350 (b), 3.352 (2020). Such a need means that the Veteran is helpless or so nearly helpless, as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352 (a). 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.351 (b). The following factors are considered in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability of a claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). The above are only factors for consideration, and it is left to the Board to determine whether a veteran is factually in need of regular aid and attendance. The particular personal functions that a veteran is unable to perform are also considered in connection with their condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need, however the need must be caused solely by service-connected disabilities. Id. Further, there is no schedular threshold for the award of SMC when granted on the basis of need for regular aid and attendance. The Veteran's service-connected disabilities consist of degenerative arthritis of the spine, bilateral knee instability, bilateral knee osteoarthritis, right knee limitation of motion, right lower extremity peripheral neuropathy, and sciatica of the left lower extremity. After reviewing the evidence of record, the Board finds that SMC based on the need for aid and attendance is warranted. In support of the Board's conclusion, the Board notes that in a June 2017 private examination for housebound status, the Veteran reported that his low back, knees, spine, legs, and rheumatism attribute to his need for aid and attendance. He reported that he cannot move at times due to pain and that his knees and low back are always in pain. He noted that he cannot stand up straight most of the time and explained that this is the only way he can walk without too much pain. He further reported that there are places he cannot reach due to his obesity, and that he forgets to take his medication at times. Additionally, he indicated that a typical day includes going to the hospital or back to bed, and that he only leaves the home about three times a week for appointments or other emergencies. In his July 2019 hearing, the Veteran's wife testified that she takes care of the Veteran, to include cleaning, preparing meals, and assisting the Veteran with bathing. She further testified that she helps him with getting in and out of the bathtub, getting dressed, including putting on socks and pulling up his pants; and she ensures that he takes all his medicine. Consistent with the Veteran and his wife's reports is an April 2012 medical opinion in which the Veteran's private examiner noted that the Veteran needs full-time assistance with all daily living activities such as personal hygiene, cooking, cleaning, laundry, shopping, and visits to physicians. In a July 2013 written correspondence, the examiner reemphasized her opinion noting the Veteran's need for full-time assistance for all daily living activities. The examiner further noted that the Veteran's condition will decline and will continue to decline. Similarly, in a July 2013 written correspondence, a different private examiner noted that the Veteran's condition has deteriorated in terms of diabetes, mobility, and heart function. And, in September 2017, a VA examiner found that the Veteran has poor potential for meaningful rehab due to the compounding nature of his right knee osteoarthritis, low back DJD, neck DJD, morbid obesity, and the chronicity of his functional impairment. The Board recognizes that the private examiners and the VA examiner attributed both service-connected and nonservice-connected disabilities to the Veteran's need for aid and attendance, such as COPD, hypertension, diabetes mellitus, sleep apnea, obesity, gout, rheumatism, and transient ischemic attacks. However, the July 2013 private examiner also diagnosed the Veteran with chronic pain syndrome and noted that he has a risk of falls, difficulty ambulating, and is very weak. In addition, the second private examiner noted the Veteran's mobility was deteriorating. To that end, the evidence shows that the Veteran's right knee disability has necessitated the use of a wheelchair to prevent the risk of falling. This finding is evidenced in an August 2018 VA treatment record where it was noted that the Veteran's right knee pain prevents him from ambulating, and he uses a power wheelchair due to falling. Additionally, a March 2018 VA treatment record noted that the Veteran ambulates in a wheelchair and has difficulty standing as he has worsening right knee pain when he stands up and walks. The Board notes that the Veteran's right knee disability includes arthritis, neuropathy, and instability, all of which he is service-connected for. In addition, the Veteran is also service-connected for left knee arthritis, left knee instability, left leg sciatica, and DJD of the back, all of which likely contribute to the Veteran's risk of falling and his inability to ambulate. The Board finds the compounding functional impairments caused by the Veteran's service-connected knees, back, and neuropathy render the Veteran unable to ambulate safely which would require care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. In addition, the Veteran's inability to ambulate safely and stand for prolonged periods would also necessitate the need for aid and assistance with activities of daily living such as cooking, cleaning, bathing, and dressing. As such, the Board finds the preponderance of evidence is in favor of the claim. Therefore, SMC is granted for aid and attendance. 3. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran is service connected for arthritis of the spine rated as 40 percent disabling; right knee instability, rated as 20 percent prior to January 8, 2021, and 30 percent thereafter; left knee instability rated as 20 percent; peripheral neuropathy, right lower extremity, rated as 20 percent; sciatica left lower extremity, rated as 10 percent disabling; and left knee osteoarthritis, rated as 10 percent. The Veteran has a combined rating of 80 percent from February 24, 2017 and 90 percent from January 8, 2021. Therefore, the schedular criteria for TDIU have been met for the entire appeal period. In determining whether a TDIU is warranted, the Board observes the Veteran's VA Form 21-8940, Application for TDIU, where the Veteran reported that he last worked in 1999 as a drug and alcohol specialist. He reiterated the same in his hearing and testified that he could no longer stand to talk to people. A review of the evidence shows that in the Veteran's March 2017 neuropathy examination, the examiner noted that the Veteran's bilateral neuropathy caused limitations with walking on uneven terrain and climbing up and down ladders. It was also noted that the Veteran has severe DJD of the right knee which the examiner found was the cause of his muscle atrophy. In the Veteran's May 2021 VA knee examination, it was noted that the Veteran's knee disabilities cause functional impairments such that the Veteran cannot stand or walk but for a very short amount of time. It was also noted that he ambulates in a motorized scooter and that he cannot work a physical job. Similarly, in his May 2021 back examination, the examiner found that the Veteran's back disability prevents the Veteran from standing but for a few minutes. He can only walk a few feet and avoids stairs, bending, and lifting. Further, he primarily uses a motorized scooter to get around. Other evidence which shows functional impairment caused by the Veteran's knee include a March 2018 VA treatment record where the Veteran complained of right knee pain worsening and that the pain gets worse when he stands up and walks. A musculoskeletal examination showed tenderness to palpation over the right knee joint, crepitus, and the examiner noted that the Veteran ambulates in a wheelchair and has difficulty standing. An August 2018 VA treatment record also shows that the Veteran's right knee pain prevents him from ambulating, and that he uses a power wheelchair due to falling. Similarly, in a December 2019 VA treatment record it was noted that the Veteran's right knee arthritis necessitates an electric wheelchair. Given the above, the Board finds that the functional impairments of the Veteran's service connected disabilities preclude the Veteran from securing and following gainful employment. The Board recognizes that the Veteran's last employment as a drug and alcohol counselor required him to stand for long periods which he cannot do given his functional impairments. Although it is plausible that he may be able to obtain employment as a counselor that would allow the Veteran to sit, the Board finds that this option is not feasible as the Veteran testified that he is unable to sit for prolonged periods of time. The Board finds this statement credible given the necessity and the Veteran's consistent use of an electric wheelchair. Furthermore, the Board recognizes a September 2017 VA treatment record where the examiner noted that given the compounding nature of the Veteran's right knee osteoarthritis, low back DJD, neck DJD, morbid obesity, and the chronicity of his functional impairment, he has poor potential for meaningful rehab. The examiner concluded that the Veteran is likely permanently unemployable given his skill set. Although the examiner's finding considered the Veteran's neck DJD and obesity, which the Veteran is not service connected for, the Board finds the preponderance of the evidence shows that the combined functional impairments from his service-connected bilateral knee, neuropathy of the lower extremities, and back disability preclude the Veteran from securing and following gainful employment. Accordingly, a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to January 8, 2021, and in excess of 20 percent thereafter for right knee osteoarthritis is remanded. 2. Entitlement to a compensable rating for right knee, limitation of extension, is remanded. 3. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is remanded. 4. Entitlement to a rating in excess of 20 percent for left knee instability is remanded. 5. Entitlement to a rating greater than 20 percent for peripheral neuropathy, right lower extremity, is remanded. As noted above, new evidence was added to the record that requires readjudication in the first instance by the RO. As such, remand is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. Thereafter, the RO should review the evidence, to specifically include, the results of the May 2021 VA knee examination and VA treatment records associated with the record in August 2021. Then, readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.