Citation Nr: 21073431 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-19 970 DATE: December 8, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a right knee disability is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) beginning December 3, 2020, is granted. REMANDED Entitlement to a TDIU prior to December 3, 2020, on an extraschedular basis is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability is manifested by flexion limited to, at worst, 80 degrees and pain; and extension limited to, at worst, 0 degrees with pain. 2. Beginning December 3, 2020, the Veteran has had a combined rating of at least 70 percent with one disability rated 40 percent or better, and his service-connected disabilities have combined so as to prevent him from obtaining and maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5260, 5261 (2020). 2. The criteria for a TDIU have been met beginning December 3, 2020. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1982 to April 1985, November 1990 to May 1991, and November 2001 to June 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2019. A transcript of the hearing has been associated with the claims file. In January 2020 and January 2021, the Board remanded the Veteran's claims for additional development. The case has now been returned to the Board for further appellate action. Increased Rating Right Knee The Veteran argues that the symptoms of his right knee disability are worse than those contemplated by the currently assigned rating. VA outpatient treatment reports reflect reports of and treatment for a right knee disability. However, the records do not include findings pertinent to rating the right knee disability. During a January 2012 VA examination, the Veteran denied flare-ups of the right knee. Range of motion testing of the right knee revealed flexion to 130 degrees and extension to 0 degrees, with no objective evidence of pain. The Veteran was able to perform three repetitions of motion with no additional limitation of motion or function. Joint stability testing was normal, and the Veteran had normal muscle strength. There was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran did not have any meniscal conditions or any surgical procedures of the right knee. X-rays did not reveal arthritis or patellar subluxation. There was no swelling of the right knee joint, and the Veteran ambulated without the use of any assistive devices. The Veteran was assessed with patellofemoral syndrome. During a March 2019 VA examination, the Veteran reported increased right knee pain with flare-ups of the knee consisting of sharp pain. He denied functional loss or functional impairment with repeated use over time. Range of motion testing of the right knee revealed flexion to 90 degrees and extension to 0 degrees with no objective evidence of pain. There was no objective evidence of localized tenderness or pain on palpation of the joint or soft tissue. There was no objective evidence of crepitus. There was no additional loss of function or limitation of motion with at least three repetitions of motion. Functional ability was not limited by pain, weakness, fatigability, or incoordination with repeated use over time or during flare-ups of the right knee. Muscle strength testing was normal. There was no ankylosis of the right knee. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. There was no recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. There was no meniscal condition or surgical procedures of the right knee. The Veteran ambulated with the occasional use of a cane for back and knee pain. There is no evidence of pain on passive range of motion testing of the right knee or non-weight bearing of the right knee. The Veteran was assessed with patellofemoral pain syndrome. During a September 2020 VA examination, the Veteran reported right knee pain; difficulty walking, standing, and sitting; and morning stiffness. The Veteran endorsed flare-ups of the knee occurring once per week lasting a majority of the day. The flare-ups were precipitated by walking, standing, kneeling, sitting for long periods, and stair climbing and alleviated by bed rest and extending his knee. The Veteran did not report any functional loss or functional impairment of the knee with repeated use over time. Range of motion testing revealed flexion to 80 degrees and extension to 0 degrees. There was tenderness or pain over the right patellofemoral joint. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions of motion with no additional loss of function or limitation of motion. Muscle strength testing was normal. There was no ankylosis of the right knee. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. There was no meniscal condition or surgical procedures of the right knee. The Veteran ambulated with the regular use of a prescription knee brace and constant use of a prescription cane. There was objective evidence of pain on passive range of motion of the right knee and pain on non-weight bearing. X-rays of the right knee did not reveal evidence of degenerative joint disease. The Veteran was assessed with patellofemoral pain syndrome. During a March 2021 VA examination, the Veteran reported increased right knee pain. The Veteran endorsed flare-ups of the right knee with standing or walking for longer than ten to fifteen minutes, squatting, and climbing stairs. He indicated that the flare-ups lasted until he stopped doing what caused the flare-up and was alleviated by rest and taking something for the pain. The Veteran did not report functional loss or functional impairment with repeated use over time. Range of motion testing revealed active and passive flexion to 110 degrees with pain, and 0 degrees of extension with pain. There was no objective evidence of crepitus and there was objective evidence of subpatellar and palpable patella tendon tenderness. The Veteran was able to perform repetitive use testing with at least three repetitions of motion with no additional loss of function or motion. Functional ability was not limited by pain, weakness, fatigability, or incoordination with repeated use over time or during flare-ups of the right knee. There was no ankylosis of the right knee. There was no history of recurrent subluxation, lateral instability, recurrent effusion, or patellar instability. There was no meniscal condition or surgical procedures of the right knee. There was no recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran ambulated with the regular use of a cane to ameliorate right knee pain. The Veteran was assessed with patellofemoral pain syndrome. The Veteran has also been awarded a 10 percent rating for his right knee disability for painful motion pursuant to Diagnostic Code 5260. 38 C.F.R. § 4.71a (2020). However, there is no evidence of record showing the Veteran to have flexion limited to 30 degrees or less at any time. In fact, flexion was limited to, at worst, 80 degrees. Diagnostic Code 5260. 38 C.F.R. § 4.71a (2020). With regard to extension, there is no evidence of record showing the Veteran to have extension limited to 15 degrees or more at any time to allow for separate compensable rating for limitation of extension of the right knee. Extension has been full at 0 degrees at all examinations of record. Diagnostic Code 5261. 38 C.F.R. § 4.71a (2020). In terms of functional loss, although the Veteran has reported knee pain, such pain was not productive of symptoms that met or were analogous to the criteria for higher ratings for limitation of motion. Therefore, a rating in excess of 10 percent for the right knee disability is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2020). The Board has considered the effects of repeated use over time and flare-ups in light of the Court of Appeals for Veteran's Claims (Court) holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the evidence indicates that the Veteran had no reduction in flexion or extension after three repetitions at any of the examinations conducted during the pendency of the appeal. Moreover, the March 2021 VA examiner accounted for the functional impairment during repeated use and with flare-ups, and determined that the Veteran's range of motion was unchanged during those periods. The September 2020 examiner noted objective evidence of pain on passive range of motion of the right knee and pain on non-weight bearing and the Veteran endorsed problems with standing or walking for longer than ten to fifteen minutes, squatting, and climbing stairs. However, the Veteran has not described any functional loss that would be consistent with a rating in excess of 10 percent. Thus, the preponderance of the evidence is against a finding that the Veteran had more limitation of motion in right knee than that found at his VA examinations. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning schedular ratings in excess of 10 percent for functional impairment of the right knee disability. Consideration has also been given to assigning higher ratings under other diagnostic codes pertaining to the knee. However, there is no evidence of record showing the Veteran to have ankylosis of the either knee; a meniscal condition; recurrent subluxation or lateral instability, tibia or fibula impairment in either leg; or genu recurvatum. As such, higher or separate ratings are not warranted for the right knee under other diagnostic codes. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5262, 5263 (2020). The Board notes that there have been changes to the musculoskeletal regulations effective February 7, 2021. The Board may continue the old rating criteria to rating periods prior to February 7, 2021 but may apply whichever set of criteria is more favorable to periods after February 7, 2021, if the claim was pending prior to that date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the new rating criteria effective February 7, 2021, no changes were made to Diagnostic Code 5256, or Diagnostic Codes 5258-5261. Changes were made to Diagnostic Code 5257 and Diagnostic Code 5262. However, in this case, the record does not reflect diagnosed patellar instability, recurrent subluxation or instability, or tibia or fibula impairment. Accordingly, higher or separate ratings under the new rating criteria effective February 7, 2021, are not warranted. The Veteran's belief that he is entitled to a rating higher than 10 percent rating for his right knee disability is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran's general belief that he is entitled to higher ratings. Accordingly, the Board finds that a preponderance of the evidence is against the right knee claim. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, as the preponderance of the evidence is against the claim, entitlement to a rating in excess of 10 percent for the right knee disability is not warranted. TDIU - Prior to December 3, 2020 The Veteran contends that he is unable to obtain and maintain substantially gainful employment due to his service-connected right knee disability and posttraumatic stress disorder (PTSD). A review of the record shows that beginning December 3, 2020, the Veteran had a combined rating of 70 percent, with at least one disability rated at 40 percent or higher. As such, the Veteran has met the schedular criteria for assignment of a TDIU for the period beginning December 3, 2020. 38 C.F.R. § 4.16. On a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability received in February 2021, the Veteran indicated that he last worked full time on April 5, 2018, and he became too disabled to work on June 11, 2018. He reported that he worked as a painter at Robins Air Force Base from May 1990 to June 2018. He noted that he completed four years of high school. On a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits indicates that the Veteran worked as a painter at Robins Air Force Base from May 1996 to June 2019 when he stopped working due to voluntary retirement. During a January 2012 VA PTSD examination, the examiner concluded that Veteran's PTSD would result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation During an August 2020 VA knee examination, the examiner indicated that the Veteran's right knee disability would impact his ability to perform occupational tasks requiring activities involving sitting, standing, walking, and driving due to knee pain. During a March 2021 VA knee examination, the examiner indicated that the Veteran's right knee disability would impact his ability to perform occupational tasks requiring activities involving squatting, kneeling, climbing ladders, or standing and walking for more than ten to fifteen minutes at a time. A July 2021 VA PTSD examiner indicated that the Veteran's PTSD would result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Veteran's impairments included an inability to remember or follow instructions, inability to think abstractly, inability to work in public or in an enclosed space or cubicle, and inability to work in a loosely supervised situation. As discussed above, a March 2021 VA knee examiner would impact his ability to perform occupational tasks requiring activities involving squatting, kneeling, climbing ladders, or standing and walking for more than ten to fifteen minutes at a time and both the 2012 and 2021 VA PTSD examiners would result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. As noted, the Veteran's only job for more than twenty years was as a painter which required him to squat, kneel, climb ladders, stand, and walk. Additionally, the July 2021 examiner indicated that the Veteran's PTSD resulted in an inability to work in enclosed spaces or work in loosely supervised situations. Based on the subjective reports of the Veteran and the objective findings in the various medical evidence of record, the Board finds that the Veteran's service-connected disabilities significantly impact his ability to function in an occupational setting. Therefore, the Board finds that the manifestations of the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment consistent with his education and industrial experience since December 3, 2020. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to a TDIU beginning December 3, 2020, is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND With regard to the period prior to December 3, 2020, the Veteran had a combined rating of 60 percent. As such, the Veteran did not meet the schedular criteria for assignment of a TDIU prior to December 3, 2020. 38 C.F.R. § 4.16. However, when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to appropriate VA officials for consideration of assignment of a TDIU rating. 38 C.F.R. § 4.16(b) (2020). As noted above, the Veteran has been granted entitlement to a TDIU for the period of time when he met the schedular criteria for the assignment of a TDIU. As such, the Board concludes that the facts of this case meet the criteria for submission of the Veteran's claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. Therefore, the Board finds that the Veteran's claim of entitlement to a TDIU should be referred for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b) (2020) for the period prior to December 3, 2020. The matters are REMANDED for the following action: 1. Refer the case to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis prior to December 3, 2020, pursuant to 38 C.F.R. § 4.16(b). (Continued on the next page) 2. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.