Citation Nr: 21072609 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-10 633 DATE: December 3, 2021 ORDER Entitlement to a rating in excess of 20 percent for limitation of motion due to left knee post residuals of arthroscopic surgery with excision of medial plica is denied. Entitlement to a separate initial 30 percent rating, but not higher, for adjustment disorder with depressed mood as a manifestation of the service-connected left knee residuals of arthroscopic surgery with excision of medial plica is granted. Effective May 18, 2016, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a separate compensable rating for the Veteran's chronic kidney disease stage 3 as a manifestation of the service-connected left knee residuals of arthroscopic surgery with excision of medial plica is remanded. FINDINGS OF FACT 1. Even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the Veteran's left knee is not productive of flexion limited to 15 degrees or less or extension limited to 20 degrees or more. 2. Resolving all reasonable doubt in favor of the Veteran, his adjustment disorder with depressed mood results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. Effective May 18, 2016, it is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left knee post residuals of arthroscopic surgery with excision of medial plica have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260-5261. 2. The criteria for an initial 30 percent rating, but not higher, for adjustment disorder with depressed mood as secondary to the service-connected left knee residuals of arthroscopic surgery with excision of medial plica have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9440. 3. Effective May 18, 2016, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1982 to July 1985. In September 2015 the Veteran testified before a former Veterans Law Judge. The Board remanded this appeal in March 2016. In September 2020 the Board notified the Veteran that the Veterans Law Judge who chaired his September 2015 hearing was no longer employed by the Board. Thereafter, the Veteran presented sworn testimony at a hearing before the undersigned in February 2021. This matter was previously remanded by the Board in a March 2021 decision for further development. In the March 2021 Board decision, the Veteran was granted a separate 20 percent rating for left knee locking and denied a rating in excess of 20 percent for left knee instability. As the Veteran testified in his February 2021 Board hearing that his left knee disability increased in severity and disputed the range of motion estimations during flare-ups and repeated use over time in the September 2019 VA examination, the Board remanded the issue for an updated VA examination. Additionally, the Veteran asserted that his knee disability has also impacted his mental health and resulted in kidney problems due to the pain medication he takes for his knee. As these additional problems were not contemplated by the rating schedule for the knee, the Board remanded to afford nexus opinion to address the etiology of any kidney disability and psychiatric condition as secondary to the service-connected left knee limitation of motion. See Morgan v. Wilkie, 31 Vet. App. 162 (2019) (explaining that VA's duty to maximize benefits may require it to consider secondary service connection as part of an increased rating claim). 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) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). 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 subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 1. Entitlement to a rating in excess of 20 percent for left knee post residuals of arthroscopic surgery with excision of medial plica The Veteran contends that his left knee disability has increased in severity over time and he is entitled to higher disability ratings for the left knee as his symptoms continue to worsen. See March 2021 BVA Decision; see also February 2021 Hearing Transcript. Service connection is currently in effect for left knee instability with a 20 percent evaluation under DC 5257, effective July 15, 2010, and for left knee locking with a 20 percent evaluation under DC 5258, effective July 15, 2010. The Board noted in March 2021 that a rating in excess of 20 percent for Veteran's left knee instability is not warranted at any point during the appeal period. Additionally, as 20 percent is the highest schedular rating available under DC 5258, a rating in excess of 20 percent for Veteran's left knee locking is not warranted. As such, the Board will evaluate only whether a higher rating is warranted based on loss of range of motion. Under DC 5260, where limitation of flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, DC 5261, limitation of extension of the leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Post remand, the Veteran was afforded a VA examination for his left knee in June 2021. The Veteran reported continued left knee pain, increased sharp pain and swelling during prolonged, weight-bearing activity. The Veteran also reported undergoing cortisone injections and use of pain medication to deal with his knee disability. He did not report flare-ups of the knee. He stated he suffers functional loss due to difficulty with ambulation due to pain, especially during prolonged periods. Initial range of motion measurement upon examination for the left knee showed extension limited to 0 degrees and flexion limited to 70 degrees, with functional loss due to pain limiting use. There was no objective evidence of localized tenderness or pain on palpation of the knee, but there was evidence of pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss of function or range of motion. The Veteran did not perform repetitive use over time testing; however, the examiner stated pain led to significantly limited functional ability with repeated use and estimated range of motion during repeated use to be limited to 70 degrees flexion and 0 degrees extension. The examination was not conducted during a flare-up. Veteran did not have muscle atrophy. No ankylosis was noted. The Veteran's functional impact due to his knee disability limits him from prolonged ambulation and weight-bearing to the knees. The VA examination results showed range of motion for flexion was noted to be limited to 70 degrees, 70 degrees upon repeated use and Veteran did not report flare-ups of the knee. At no time during the appeal period has the Veteran's left knee been limited to 15 degrees flexion or less. See July 2016 VA Examination; September 2019 VA Examination; June 2021 VA Examination. Under DC 5260, which provides ratings under limitation of flexion, the examination results do not result in a disability picture that acquiesces with a compensable rating. The Board finds that the preponderance of the evidence is against a finding the Veteran is entitled to a rating in excess of 20 percent for limitation of motion for his left knee. Under DC 5261, to warrant a rating in excess of 20 percent, extension must be limited to 20 degrees or more. At no time during the appeal period has the Veteran's knee been limited to 20 degrees extension or more. See July 2016 VA Examination; September 2019 VA Examination; June 2021 VA Examination. A higher evaluation under DC 5261 of 30 percent is not warranted unless the record shows leg extension which is limited to 20 degrees. Even considering the Veteran's reported functional limitations (e.g., left knee pain, inability to walk, sit or stand for long periods), the Board finds that the preponderance of the evidence is against a finding the Veteran's left knee disability warrants an increased rating for limitation of motion. A rating in excess of 20 percent is not warranted. 2. Entitlement to an initial 30 percent rating, but not higher, for adjustment disorder with depressed mood as secondary to the service-connected left knee residuals of arthroscopic surgery with excision of medial plica In Morgan v. Wilkie, 31 Vet. App. 162, 167-68 (2019), the United States Court of Appeals for Veterans Claims (Court) held that VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before an extraschedular analysis is triggered, including inter alia, secondary service connection (38 C.F.R. § 3.310), analogous ratings (38 C.F.R. § 4.20), and rating under multiple diagnostic codes without pyramiding (38 C.F.R. § 4.14). See also Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); (Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc). In light of [the Veteran's testimony at the February 2021 hearing that he had mental health impairment due to his left knee disability, the Board in March 2021 remanded this aspect of the Veterans' left knee disability claim. Subsequent to the Board's March 2021 remand for nexus opinions to address the etiology of any psychiatric condition as secondary to the Veteran's service-connected left knee condition, pursuant to Morgan, the Veteran was afforded a VA Mental Disorders examination in June 2021. The Veteran was diagnosed with a chronic adjustment disorder as having depressed mood. In an associated medical nexus opinion, the VA examiner opined that the psychiatric condition was at least as likely as not caused by the Veteran's left knee limitation of motion disability as the disability are related to each other; Veteran discussed the extent to which the left knee conditions have impacted his life. The examiner noted that "depression is the most common emotion associated with chronic pain," it is three to four time more common in people with chronic pain; further, 30% to 80% of people with chronic pain suffer depression. As physical limitations may cause interrupted sleep disturbances, increased irritability and depression, the Veteran's left knee conditions were noted to impact his social and occupational areas. Following a review of the record and pursuant to the positive nexus opinion provided by the VA examiner in June 2021, the Board finds that based on the findings and conclusions in the June 2021 VA psychiatric examination report, as well as the other lay and medical evidence of record, including the Veteran's sworn testimony, an initial 30 percent rating for adjustment disorder with depress mood is warranted. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 38 C.F.R. § 4.130, Diagnostic Code 9440. A higher 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. Id. The June 2021 VA mental disorder examination found that Veteran exhibited occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress and symptoms are controlled by medication. He avoids complaining about his mood or mental problems and resorts to eating to cope. He suffers from depressed mood and chronic sleep impairment. He is capable of managing his financial affairs. He is not prescribed psychotropic medication and his symptoms are indicative of mild depression. The Board finds that, given the foregoing symptoms, including several that are listed in the criteria for a higher rating, as well as the impact of those symptoms on social functioning, the evidence more nearly approximates mild to moderate impairment such that an initial 30 percent rating is warranted. However, the Board also finds that a higher 50 percent rating is not warranted. The VA psychiatric examination found the impact of the Veteran's adjustment disorder to be no worse than occupational and social impairment due to mild and transient symptom, consistent with an even lower 10 percent rating. As the impact on social and occupational functioning has been no more than mild to moderate in severity, a rating higher than 30 percent for Veteran's adjustment disorder with depressed mood is not warranted. 3. Effective May 18, 2016, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran indicated in his September 2015 Board hearing that his service-connected disabilities preclude him from securing or following a substantially gainful occupation and raised the issue of a TDIU as part of his increased rating claim. In the March 2016 Board decision, the claim of entitlement to a TDIU was remanded as it was inextricably intertwined with the other claims on appeal. The Veteran testified at his February 2021 Board hearing that he stopped worked approximately three years prior due to his service-connected disabilities, namely his left knee conditions. He worked as a professional driver and was not able to work any longer as he could not overcome the obstacles his left knee presented. He further stated that he attended Vocational Rehabilitation in 2014 but his enrollment was discontinued due to his obesity and his training was halted due to his inability to complete the training. After he started taking the pain medication for his knee, he also stopped driving professionally and due to his severe knee symptomatology, he was not able to go through vocational rehab training. The Veteran noted that the VA examiner in the September 2019 VA examination held that sedentary or light-duty employment was possible for the Veteran and argued that light-duty employment would only be marginal and would not prevent a grant of unemployability. The Veteran argued that he is unable to follow any sedentary employment and the VA examiner did not reference any factual information that would support a finding that any sedentary employment, if obtained, would be gainful. The Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability in July 2016, in which he stated his left knee disabilities collectively prevented him for securing or following any substantially gainful occupation. He stated he last worked full-time May 17, 2016 and he became too disabled to work by June 1, 2016. His disabilities began affecting his employment in July 2012. He had been working as a limousine driver for different companies, between 40-50 hours a week, from November 2014 to May 2016. The Veteran had one year of college education, attended training to become a USDA inspector in January 2014 but could not complete due to being unqualified for the field and losing his funding he was provided through vocational rehabilitation. He has not tried to obtain other employment since he became too disabled to work. In March 2021, as the Veteran did not meet the schedular requirements for TDIU, the Board remanded the claim to the RO to consider whether to refer the issue to the Director, Compensation Service. 38 C.F.R. § 4.16(b). In an August 2021 rating decision, the RO denied entitlement to a TDIU and held the evidence failed to support a referral to the Director, Compensation Service for an extra-schedular evaluation. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran's service connected disabilities consist of the following: psychiatric disability, secondary to left knee, at 30 percent disabling; left knee instability at 20 percent disabling; left knee locking at 20 percent disabling; left knee limitation of motion at 20 percent at 20 percent disabling; and left knee scar at 0 percent disabling. Thus, the Veteran meets the threshold schedular requirements for an award of TDIU benefits under 38 C.F.R. § 4.16(a). The June 2021 VA Knee examiner opined that Veteran's left knee disabilities impact his ability to perform any type of occupational task as he now avoids prolonged ambulation and weight-bearing to the knees and experiences pain during walking. In the June 2021 VA kidneys examination, the VA examiner also opined Veteran's chronic kidney disease causes him to feel fatigued and experience frequent loss of energy. Veteran also suffered from occupational and social impairment which decrease work efficiency and ability to perform occupational tasks during periods of significant stress due to his adjustment disorder with depressed mood. See June 2021 VA Examinations. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports that the Veteran's service-connected disabilities prevents him from securing or following substantially gainful employment. As the Veteran meets the requirements under 38 C.F.R. § 4.16(a), is not currently working, and the evidence supports that the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment, the Board finds that entitlement to a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a kidney condition as secondary to the service-connected left knee residuals of arthroscopic surgery with excision of medial plica is remanded. In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court held, "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." Morgan, 31 Vet. App. at 167. Indeed, the Court stated doing so was necessary to ensure a veteran is appropriately compensated before resorting to § 3.321(b)'s extraschedular provisions. In doing so, the Court held this included secondary service connection. Id; see also Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc). Subsequent to the Board's March 2021 remand, a VA examiner opined that the Veteran's chronic kidney disease, stage 3 with symptoms that include frequent loss of energy, fatigue, and renal dysfunction. The VA examiner indicated that the Veteran's kidney disability was at least as likely as not proximately caused by the left knee disability. She explained that the Veteran's long-term NSAID use resulted in his chronic, stage 3, kidney disease. Despite the positive nexus opinion, however, the June 2021 VA examination report does not contain findings sufficient to rate the severity of the Veteran's chronic kidney disease. As such, a remand for another VA examination is necessary to adjudicate this aspect of the appeal. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records for the Veteran. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to ascertain the current nature, extent and severity of his chronic kidney disease. All necessary tests should be performed. All findings should be reported in detail. The examiner should identify all kidney pathology found to be present. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.