Citation Nr: 21072387 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-00 466 DATE: December 3, 2021 ORDER A rating greater than 10 percent for left knee degenerative joint disease (DJD) (with limitation of flexion) is denied. A rating greater than 10 percent for right knee DJD (with limitation of flexion) is denied. A rating greater than 10 percent for right knee DJD (with limitation of extension) is denied. A rating greater than 10 percent for right knee symptomatic removal of cartilage with locking and effusion is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran had full extension of the left knee and flexion at most limited to 70 degrees. 2. The Veteran had flexion of the right knee limited to 45 degrees at most. 3. The Veteran had extension of the right knee limited to 10 degrees at most. 4. The Veteran's right knee meniscal cartilage removal is manifested by locking and recurrent effusion. 5. The service-connected disabilities are not shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for left knee DJD (with limitation of flexion) have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code (DC) 5003, 5260. 2. The criteria for a rating greater than 10 percent for right knee DJD (with limitation of flexion) have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code (DC) 5003, 5260. 3. The criteria for a rating greater than 10 percent for right knee DJD (with limitation of extension) have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code (DC) 5261. 4. The criteria for a rating greater than 10 percent for right knee symptomatic removal of cartilage with locking and effusion have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code (DC) 5259. 5. The criteria for assignment of a TDIU are not met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to April 1990. These matters came before the Board of Veterans' Appeals (Board) on appeal from January and April 2014 rating decisions issued by the RO. The Board remanded the appeal in August 2019 for additional development. In pertinent part, the Board instructed the RO to obtain VA treatment records since June 2013 and schedule the Veteran for VA examination ((that complied with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016)) to determine the severity of his service-connected left and right knee disabilities. The Veteran received responsive VA examinations in November 2019. The development has been completed. The appeal originally included the issues of whether discontinuance of a separate 10 percent rating for instability of the right knee was proper. In July 2020, the RO restored the separate 10 percent rating for right knee instability effective July 1, 2014. The claim has been resolved and is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The claim for a TDIU rating has been added to the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes ("DC") identify the disabilities. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 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. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and after the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA must consider the claim for a higher rating pursuant to the former and revised regulations since February 7, 2021. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The ratings for the Veteran's left and right knee disabilities have been assigned pursuant to DC 5003 and 5259. DC 5003 provides that degenerative arthritis is rated based on limitation of motion of the affected joint. When the limitation of motion of the specific joint or joints is noncompensable, a 10 percent rating is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In the absence of limitation of motion, a 20 percent rating is assigned for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. A 10 percent rating is assigned for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. DC 5259 contemplates cartilage, semilunar, removal of, symptomatic and assigns a maximum 10 percent rating for the disability. Under DC 5260, a 10 percent rating is assigned for limitation of flexion to 45 degrees. A 20 percent rating contemplates limitation of flexion to 30 degrees. A rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § § 4.71a, DC 5260. The VA General Counsel has held that separate ratings under 38 C.F.R. § § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § § 4.71a, DC 5261. Under the revised criteria, effective February 7, 2021, there is no change in the rating criteria for degenerative arthritis, other than post-traumatic under DC 5003 There is also no change in the criteria for evaluating symptomatic removal of semilunar cartilage and limitation of flexion and/or limitation of extension under DC 5259, 5260, and 5261. 1. Entitlement to a rating greater than 10 percent for left knee degenerative joint disease (DJD) 2. Entitlement to a rating greater than 10 percent for right knee DJD 3. Entitlement to a rating greater than 10 percent for right knee DJD (based on limitation of extension) 4. Entitlement to a rating greater than 10 percent for right knee symptomatic removal of cartilage with locking and effusion The February 2011 VA examination joints examination report reflects the Veteran's complaints of constant bilateral knee pain. He had bilateral knee pain, stiffness, swelling, and tenderness. He reported that he had severe flareups of right knee joint disease 70 percent of the time. His flare-ups of right knee joint disease lasted 2 hours. Prolonged walking precipitated flare-ups of right knee disability. He always used a brace on his right knee and had limitations on standing (15 20 minutes) and walking (quarter mile). On the right knee, he had crepitus, deformity, edema, heat, and tenderness; on the left knee he had tenderness. On physical examination there was no objective evidence of pain with active motion. He had full extension of the left knee and flexion limited to 105 degrees. On the right knee, extension was to 5 degrees and flexion was limited to 80 degrees. There was no evidence of pain following repetitive motion or additional limitation of range of motion. There was no evidence of ankylosis in his knees. The examiner was unable to test for right knee instability because of muscle guarding but noted that previous examination documented right knee instability. January 2013 VA x-ray findings showed severe degenerative osteoarthritis of the left and right knees with joint space narrowing and large marginal osteophytes. The December 2013 VA knee and lower leg conditions examination report documents the Veteran's complaint of increasing pain and stiffness in both knees. He reported that flare-ups did not impact the function of the knees. Clinical examination showed extension of the right knee was limited to 5 degrees and flexion limited to 100 degrees (with objective evidence of painful motion at 100 degrees). He had full extension of the left knee and flexion limited to 100 degrees (with objective evidence of painful motion at 100 degrees). He was able to perform repetitive-use testing with no additional limitation of motion of the right or left knees. He exhibited tenderness or pain to palpation of the joint line or soft tissue of both knees. He had normal muscle strength. There was no evidence of left knee instability. He had no history of recurrent patellar subluxation/dislocation. He had no shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. He had no meniscal conditions. He had undergone arthroscopic surgery of both knees and experienced residual pain. He did not use an assistive device. July 2016 and May 2017 VA x-ray findings showed severe degenerative arthritis of the right knee. A May 2017 VA treatment record reflects the Veteran's complaint of increased right knee pain. He reported that his right knee "buckled" while he was stepping off a bus and he fell and landed on it. He treated the injury with ice and over-the-counter ibuprofen. On physical examination of the knee there was +1 edema. No erythema, ecchymosis, abrasions, or tenderness were elicited with palpation of the medial aspect of the knee. He had full range of motion of the knee. February 2018 VA x-ray findings showed degenerative arthritis of the right knee. April 2019 VA x-ray findings showed metallic screw in the soft tissues of the lateral aspect of the distal thigh; degenerative joint disease in the medial and lateral weightbearing and patellofemoral joints; chondrocalcinosis of the menisci; metallic pin in the medial femoral condyle; Pellegrini-Stieda disease; knee joint effusion; and, synovial osteochondromatosis. An April 2019 VA treatment record reflects that the Veteran almost fell while trying to catch a bus. His right knee locked up and the next morning he had swelling in the knee. On objective examination there was tenderness to palpation to the medial right knee with pain and crepitus with flexion of the medial joint line and warm effusion of the right knee. A June 2019 VA orthopedics consult record reflects the Veteran's complaint of chronic pain and stiffness to the right knee. He reported that he had been unable to work because his knees would lock. He worked in the furniture and construction trades. Physical inspection of the right knee showed an obvious deformity. He had extension of the right knee limited to approximately 10 degrees and flexion limited to approximately 80 degrees. He had instability of the knee with anterior drawer test but no instability posteriorly or varus or valgus instability. The November 2019 VA knee and lower leg conditions examination report reflects the Veteran's complaint of constant, severe pain in the right knee. He was unable to bend his right knee very far. He complained of constant, moderately severe left knee pain. With medication, his left knee pain was moderate. He declined passive range of motion or instability testing because it would cause his knee to swell. He did not report flare-ups of the knee and/or lower leg. He complained of functional impairment of the knees manifested by limitation of prolonged walking (he could only walk 20 to 30 yards before having to rest) and limitation of prolonged standing (he could only stand 10 to 15 minutes without a cane; 20 to 25 minutes with a cane). He reported that he was unable to squat or kneel due to pain and as a result weight-bearing range of motion testing could not be performed. When he sat, he had to extend his right knee. Physical examination showed extension of the right knee was limited to 10 degrees and flexion limited to 45 degrees. He had full extension of the left knee and flexion limited to 70 degrees. He had difficulty with/was unable to squat or kneel. He experienced pain with flexion and extension. There was evidence of pain with weight bearing of the knees and moderate tenderness to palpation of the patellofemoral joint line consistent with his DJD in the right knee. He demonstrated evidence of crepitus of the right and left knees. He was able to perform repetitive-use testing without additional functional loss or range of motion. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. His right knee was enlarged and misshapen. He had normal muscle strength. There was no evidence of right or left knee ankylosis. The Veteran declined right and left knee instability testing because of pain. He had no history of recurrent patellar subluxation/dislocation. He had no shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. He had undergone surgical intervention of both knees and complained of residual pain, reduced range of motion, and swelling. He used a full-length knee brace with Velcro on the right knee and a cane for support. The examiner remarked that passive range of motion testing was not medically appropriate and non-weight bearing joint testing could not be performed. Regarding the left and right knee DJD (with limitation of flexion) disabilities, even considering the complaints of pain, documented above, there is no evidence of flexion of the left or right knees limited to 30 degrees. Further, the Veteran has demonstrated full extension of the left knee throughout the appeal period. Regarding the right knee DJD (with limitation of extension) disability, even considering the complaints of pain, documented above, there is no evidence of extension of the right knee limited to 15 degrees. Moreover, the November 2019 VA examination report reflects that passive range of motion testing was not medically appropriate and non-weight bearing joint testing could not be performed. Though there was evidence of pain with weight bearing of the knees, the Board reiterates, there was no evidence of flexion of the left or right knees limited to 30 degrees or extension of the left or right knee limited to 15 degrees. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The preponderance of the evidence is therefore against assignment of ratings greater than 10 percent for left and right knee DJD (with limitation of flexion) and right knee DJD (with limitation of extension). Ankylosis, meniscal impairment or tibia or fibular impairment is not demonstrated; therefore, ratings greater than 10 percent under Diagnostic Codes 5256, 5258 and 5262 are not warranted either. The Veteran's right knee symptomatic removal of cartilage with locking and effusion was manifest at most by an episode of locking of the right knee with swelling (see April 2019 VA treatment record: Veteran reported that he almost fell while trying to catch a bus and his right knee locked up; the next morning he had a lot of swelling in the knee). Therefore, the preponderance of the evidence is against assignment of a rating greater than 10 percent right knee symptomatic removal of cartilage with locking and effusion. The 10 percent rating is the maximum rating assigned for cartilage, semilunar, removal of, symptomatic. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). 5. Entitlement to a TDIU Total disability ratings for compensation based upon 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. For a Veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15. The sole fact that a Veteran happens to be unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose, supra, at 363; 38 C.F.R. § 4.16 (a). The fact that a Veteran is unemployed is generally insufficient to demonstrate that he is considered "unemployable" within the meaning of pertinent VA laws and regulations. Instead, a longitudinal review of all the evidence is necessary to obtain a full understanding of the case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Service-connection is currently in effect for left knee DJD (10 percent disabling); right knee DJD (with limitation of flexion) (10 percent disabling); right knee DJD (with limitation of extension) (10 percent disabling); instability of the right knee (10 percent disabling); symptomatic removal of cartilage with locking and effusion of the right knee (10 percent disabling); and, residual scar of right knee surgery (noncompensable); the combined rating for these service-connected disabilities is 50 percent. The February 2011 VA joints examination report reflects that the Veteran had been employed fulltime for less than one year but had lost no time from work during the past 12-month period. The examiner reported that the Veteran's service-connected right and left knee disabilities had no significant effects on his usual occupation. The December 2013 VA knee and lower leg conditions examination report reflects that the Veteran's right and left knee disabilities did not impact his ability to work. A June 2019 VA orthopedic consult record documents the Veteran's report that he had been unable to work because his knees would lock up on him. He was worked doing furniture delivery and did some construction also. The November 2019 VA knee and lower leg conditions examination report reflects that the Veteran's right and left knee disabilities impacted his ability to work. The Veteran stated that he was unable to work due to his knee disabilities, with the right knee being worse than his left knee. Social Security Administration (SSA) disability determination records reflect that the Veteran was found disabled due to diagnosed osteoarthrosis and allied disorders (arthritis, right knee pain, and back pain). Reportedly, his disability began in April 2019. The Veteran's documented past relevant work (PRW) included cement mixer operator (2010 2015), furniture delivery (2007 2008), loader and unloader (2005 2006), kitchen helper (2007), building maintenance helper (November 2008 February 2009), and environmental services (Feb 2016 August 2016). The evaluator indicated that the Veteran did not have residual functional capacity (RFC) to perform his PRW because the physical demands of his PRW exceeded his RFC. The evaluator determined the highest skill level of the Veteran's PRW was semi-skilled and that the Veteran was not limited to unskilled work because of his impairments. The evaluator concluded, based on the seven strength factors of the physical RFC (lifting/carrying, standing, walking, sitting, pushing, and pulling), that the Veteran demonstrated the maximum sustained work capability for sedentary employment. The evaluator noted that the highest grade of school completed by the Veteran was 13. Here as reflected by the Veteran's SSA disability records, the Veteran had completed high school and one year of college. His PRW skill level was semi-skilled. He had worked as a cement mixer operator, furniture deliveryman, loader and unloader, kitchen helper, building maintenance helper, and in environmental services. The preponderance of the evidence of record weighs against finding that the Veteran's service-connected right and left knee disabilities, without consideration of non-service-connected disabilities, preclude him from obtaining or engaging in any form of substantially gainful employment. The Board is aware that a June 2019 VA orthopedic consult record documents the Veteran's report that he had been unable to work because his knees would lock up on him. Further, the November 2019 VA knee and lower leg conditions examination report reflects that the Veteran's right and left knee disabilities impacted his ability to work. The Veteran stated that he was unable to work due to his knee disabilities. However, the SSA disability determination records reflect that though the Veteran did not have residual functional capacity to perform his past relevant work because the physical demands of his past relevant work exceeded his residual functional capacity, the Veteran's highest skill level of his past relevant work was semi-skilled; he was not limited to unskilled work because of his impairments; and, he demonstrated the maximum sustained work capability for sedentary employment. In July 2020, the RO notified the Veteran that he may be entitled to compensation at the 100 percent rate if he was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities and requested that he complete the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit (completed by each identified employer). To date, the Veteran has not submitted the requested documents. Though the Veteran's representative argues that it is not clear that the Veteran received this notification letter, the Board notes there is no indication that the notification letter was returned as undeliverable. See Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007) (if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed). Given the Veteran's inability to cooperate with VA to obtain these records, further effort to assist the Veteran will not be undertaken. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). (CONTINUED ON THE NEXT PAGE) Thus, the Board concludes that the evidence shows that the Veteran is not unemployable due solely to his service-connected disabilities because he can engage in sedentary employment. The claim is therefore denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.