Citation Nr: 21068564 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 10-17 386 DATE: November 10, 2021 ORDER Entitlement to a compensable rating for limitation of extension of the left knee owing to osteoarthritis is denied. Entitlement to a compensable rating for limitation of extension of the right knee owing to osteoarthritis is denied. Entitlement to a rating higher than 10 percent for limitation of flexion of the left knee owing to osteoarthritis is denied. Entitlement to a rating higher than 10 percent for limitation of flexion of the right knee owing to osteoarthritis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), however, is granted from March 15, 2012. FINDINGS OF FACT 1. The Veteran has osteoarthritis in both knees but, at worst, extension of his knees is limited to 5 degrees and, at worst, flexion limited to 60 degrees. 2. But, beginning on March 15, 2012, his service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to compensable ratings for the limitation of extension of the Veteran's knees or for ratings higher than 10 percent for the limitation of flexion of his knees. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5260, and 5261. 2. However, since March 15, 2012, the criteria are met for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Army from January 1968 to January 1971, including in combat. This appeal originates from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, in support of these claims, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board since has remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) on several occasions initially in June 2015 but also more recently in April 2018, September 2020, and March 2021. Increased Ratings 1. Entitlement to compensable ratings for limitation of extension 2. Entitlement ratings higher than 10 percent for limitation of flexion The Veteran has osteoarthritis in both knees. According to DC 5010, arthritis due to trauma, i.e., post-traumatic arthritis, is rated as degenerative arthritis (hypertrophic or osteoarthritis) under DC 5003, and DC 5003 in turn indicates to rate the arthritis based on the extent it causes limitation of motion of the affected part which, since here, are the knees, DCs 5260 for limitation of flexion and 5261 for limitation of extension are implicated. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. This is the reason the DC for the limitation of flexion is 5260-5010 and for the limitation of extension 5010-5261. Also, the assignment of separate ratings for the limitation of flexion and extension was because of a precedent opinion of VA's General Counsel. See VAOPGCPREC 9-2004 (September 17, 2004). During the pendency of this appeal, the rating criteria for evaluating arthritis and certain musculoskeletal disabilities were amended in November 2020, December 2020, and February 2021. See 85 Fed. Reg. 76,453-76,469 (Nov. 30, 2020); 85 Fed. Reg. 85,523-85,524 (Dec. 29, 2020); 86 Fed. Reg. 8,142-8,144 (Feb. 4, 2021). The change, effective February 7, 2021, added certain DCs and amended the rating criteria for several DCs listed under 38 C.F.R. § 4.71a. DCs 5260 and 5261, however, remained unchanged. Prior to February 7, 2021, DC 5010 provided that arthritis, due to trauma, substantiated by X-ray findings, should be rated as degenerative arthritis (hypertrophic or osteoarthritis). Since February 7, 2021, DC 5010 still concerns post-traumatic arthritis, but the amended DC 5010 instructs that this type of arthritis should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. According to DC 5260, a 30 percent rating is warranted when flexion is limited to 15 degrees, 20 percent rating when limited to 30 degrees, a 10 percent rating when limited to 45 degrees, and a 0 percent (noncompensable) rating when limited to 60 degrees. Conversely, according to DC 5261, a 50 percent rating is warranted when extension is limited to 45 degrees, a 40 percent rating when limited to 30 degrees, a 30 percent rating when limited to 20 degrees, a 20 percent rating when limited to 15 degrees, a 10 percent rating when limited to 10 degrees, and a 0 percent (noncompensable) rating when limited to 5 degrees. To give this some context, consider that normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. According to DC 5003, however, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 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 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 U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that the final sentence of § 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." 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. Here, after considering the relevant medical and lay evidence, the Board finds that the preponderance of the evidence is against ratings greater than 10 percent for the limited flexion or compensable ratings (meaning ratings higher than 0 percent) for the limited extension. The Veteran had VA compensation examinations in December 2012, September 2013, January 2019, October 2020, and July 2021. He also submitted a private Disability Benefits Questionnaire (DBQ) in April 2016, so in the interim. During the review period at issue, his right knee flexion has measured to between 90 and 100 degrees, and his left knee flexion has measured to between 90 and 140 degrees. His extension never has been limited to greater than 5 degrees in either knee. But, to receive a higher 10 percent rating for limitation of extension under DC 5261, it would need to be limited to at least 10 degrees, and it simply has not been restricted to that extent. Similarly, to receive a higher 20 percent rating for limitation of flexion, it would need to be limited to 30 degrees, and he has not had that level of restriction in this other direction either. A treatment note from May 2012 indicates the Veteran experienced bilateral (so left and right) knee pain and joint effusion. During his December 2012 VA examination, he indicated he experiences pain during flare-ups when, for example, he rides his bike or walks up stairs. The examiner did not note whether this caused additional functional loss and did not include measurements for knee extension or flexion including after prolonged or repetitive use of the knees. In September 2013, the Veteran again reported to the VA examiner that he had bilateral knee pain daily, with his right knee being worse than his left knee. In October 2014, he submitted a written statement indicating he had begun wearing a knee brace, was having trouble walking, and fell down frequently owing to his continuing knee pain. During his January 2015 hearing before this Board, the Veteran testified that he experienced knee pain that affected his range of motion. He also reported experiencing his knee locking up. His April 2016 DBQ was deemed inadequate due to inconsistencies, namely, indicating he had been diagnosed with ankylosis while simultaneously reporting that he had limited motion bilaterally that contributed to functional loss. Ankylosis would mean no motion at all, not just limitation of motion. 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."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The DBQ also indicated the Veteran had a history of recurrent patellar subluxation/dislocation, which was inconsistent with his earlier December 2012 and September 2013 examinations as well as his subsequent examinations, which contrarily did not find a history or evidence of these conditions. The Veteran's January 2019 VA examination indicated no history of recurrent patellar subluxation/dislocation. However, he reported experiencing flare-ups. Specifically, he noted his knee pain was getting worse and that his knees swelled frequently and occasionally locked up. The examiner observed the Veteran was using a walker at the time of the interview for assistance but that his use of a walker also related to a right hip replacement (arthoplasty) in addition to his bilateral knee pain. The examiner noted the Veteran's knee pain contributed to functional loss in that he was unable to squat, kneel or crawl. The examiner also noted the Veteran was unable to run, jump, or climb ladders. As well, the Veteran had reduced muscle strength, and the examiner observed the Veteran displayed guarding during his knee extension which, in combination with overall reduced activity levels, the examiner indicated contributed to leg muscle atrophy. No ankylosis was noted, however, and stability testing was within normal limits. With regards to passive range of motion (ROM) testing, the Veteran was found to be unable to relinquish conscious control of joint motion for effective passive ROM testing to be performed. The examiner did note, however, that there was no evidence of pain in non-weight bearing positions. With regards to the Veteran's reports of his presenting symptoms, the examiner noted, "the extreme disability that he attributes to his mild bilateral knee osteoarthritis is not physiologically supported in fact." The Veteran was provided an additional VA examination in October 2020 to comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), which requires examiners to elicit information about flare-ups specifically in terms of whether they cause any additional loss of ROM and functional loss. In response, the examiner indicated there was no evidence to substantiate additional loss of function or motion during a flare-up or during repetitive use. In July 2021, the Veteran reported functional limitations during prolonged standing and ambulation. No history of patellar instability or recurrent subluxation was noted. The July 2021 VA examiner also noted there was no pain on motion for passive ROM testing and that there was no basis with which to substantiate additional loss of motion with repetitive use or during a flare-up. This assessment fulfills the requirements laid out in Sharp, 29 Vet. App. 26. The Board also has considered the other DCs 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, in considering the applicability of these other DCs, the Board finds that DCs 5256 (ankylosis of the knee), 5259 (symptomatic removal of semilunar cartilage) and 5263 (genu recurvatum) are inapplicable in this instance, as the medical evidence does not show the Veteran has these impairments. According to DC 5257, which concerns "other" knee impairment including owing to recurrent subluxation or lateral instability, a 10 percent rating is assigned when the consequent impairment is "slight", while a 20 percent rating is assigned for "moderate" impairment and a 30 percent rating is for "severe" impairment. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively, while cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63, 604 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998). The Court has clarified that the Board cannot categorically favor medical evidence over lay evidence in determining whether there is knee instability. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Under DC 5258, a single 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint. But, in Lyles, the Court clarified that separate ratings are permissible under DCs 5003 (on referral from DC 5010), 5257, and the "meniscal codes", referring to DCs 5258 and 5259. The Board acknowledges the Veteran's lay reports of symptoms and that there was, at time, functional loss due to pain during flare-ups and weakened movement making it more difficult to complete certain activities such as squatting, kneeling, crawling, running, riding a bike, and climbing stairs. However, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experiences daily knee pain and intermittent swelling and that his knees sometimes lock up would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 10 degrees. 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 (on referral from DC 5010) concerning arthritis, 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. To reiterate, 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). This is the reason the Veteran has 10 percent ratings for his limited knee flexion, despite not having sufficient limitation of flexion to otherwise warrant this rating. Although the Veteran reported that his knees would lock up, at times, there is no indication he has any dislocated semilunar cartilage to warrant a separate rating under the meniscal codes, DCs 5258 and 5259, and his statements in this regard, also regarding his knee instability, are outweighed by the objective findings of his VA examinations that were all unremarkable for instability and do not note a history of dislocated semilunar cartilage. The Board also considers it significant that instability of his knees was not detected even during the specific testing for this impairment (e.g., varus-valgus, Lachman's, etc.). Ultimately, then, it is not shown that DC 5257 warrants application either in the way of a separate rating. Therefore, in conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claims for ratings higher than 10 percent for his limited flexion and for ratings higher than 0 percent (so compensable ratings) for his limited extension. In denying any greater ratings, the Board finds the benefit of the doubt doctrine inapplicable because the preponderance of the evidence is against the claims, not instead in relative balance for versus against them. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a TDIU The Veteran asserts that he is no longer able to work due to his service-connected knee disabilities and his service-connected posttraumatic stress disorder (PTSD). He testified during his hearing that he had to stop working because he "didn't get a long very good with the people. . ." because of his PTSD. Elsewhere in his treatment records, he has reported leaving his job from being unable to keep up with physical demands of work in heating and cooling repair as a heating, ventilation, and air conditioning (HVAC) technician. An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation because of service-connected disability or disabilities. For schedular consideration, a Veteran must meet one of the following conditions: 1) if he has just one service-connected disability, it must be rated at 60 percent or more, or 2) if he has more than one service-connected disability, at least one must be rated at 40 percent or more with additional service-connected disability sufficient to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, however, disabilities resulting from common etiology or single accident or affecting one or both upper or lower extremities or a single bodily system will be considered as one, collective, disability. Id. During the applicable review period beginning on March 15, 2012, the Veteran has the following service-connected disabilities and corresponding ratings for them: PTSD (50 percent from August 21, 2008); low back arthritis (20 percent from March 15, 2012); radiculopathy of the sciatic nerve, bilateral lower extremities (20 percent from March 15, 2012- right and 10 percent from March 15, 2012- left); right knee osteoarthritis (10 percent from March 5, 2012); left knee osteoarthritis (10 percent from March 5, 2012); and tinnitus (10 percent from May 2, 2012). The Veteran has had a combined rating of 80 percent since March 15, 2012; consequently, the ratings for his service-connected disabilities meet the criteria for schedular consideration of entitlement to a TDIU. Moreover, as will be discussed, the evidence indicates his service-connected disabilities, when also considering his level of education, training, and prior work experience, render him incapable of obtaining or maintaining substantially gainful employment. Thus, this claim must be granted. Substantially gainful employment is defined as work that is more than marginal, and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In making this determination, consideration may be given to his level of education, special training, and previous work experience, but not to his age or to impairment owing to non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. On March 14, 2019, so during the pendency of this appeal, the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the Veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities The record shows the Veteran worked as a heating and cooling repairman until August 2008 according to Social Security records. Elsewhere, he reports stopping work in July 2009. Regardless, the Board observes that he stopped working well prior to the date he is eligible for a TDIU. It is worth repeating that, to receive a TDIU, the service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he can perform the physical and mental acts required by employment. The record indicates the Veteran attained a high school level education prior to entering the military. After separation, the record indicates he worked for General Motors for 15 years before becoming a commercial journeyman (a skilled tradesman) in heating and cooling as a HVAC tech. The Board acknowledges the extensive physical demand of fixing heating and cooling units and, in turn, his reports of joint pain with regards to necessary movements such as climbing ladders, stooping, and lifting. The Board observes that his reports are corroborated by VA examiners' reports of his functional loss. Thus, all things considered, the Board finds that the Veteran's service-connected disabilities, most notably his PTSD and osteoarthritis, are sufficiently severe as to render him unable to secure or maintain any form of substantially gainful employment consistent with his level of education, prior work experience and training. Accordingly, a TDIU is warranted, subject to the statutes and regulations governing the payment of retroactive compensation. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.