Citation Nr: 21074627
Decision Date: 12/15/21	Archive Date: 12/15/21

DOCKET NO. 14-11 824
DATE:  December 15, 2021

ORDER

An initial rating in excess of 10 percent prior to September 20, 2012, 20 percent from September 20, 2012, to April 9, 2014, and 40 percent thereafter, for degenerative disc disease (DDD) of the lumbar spine, is denied.

A rating in excess of 20 percent for right knee instability is denied.

A rating in excess of 10 percent for right knee, limitation of flexion is denied.

A total disability rating based on unemployability due to service-connected disabilities (TDIU) prior to April 9, 2014, is denied. 

FINDINGS OF FACT

1. For the period on appeal prior to September 20, 2012, the Veteran's DDD of the lumbar spine was manifested by painful, limited motion, but with forward flexion greater than 60 degrees and a combined range of motion of the entire thoracolumbar spine greater than 120 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, intervertebral disc syndrome (IVDS), or associated objective neurological abnormalities.

2. From September 20, 2012 to April 9, 2014, the Veteran's DDD of the lumbar spine is manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, IVDS with incapacitating episodes, or associated objective neurologic abnormalities.

3. As of April 9, 2014, the Veteran's DDD of the lumbar spine is manifested by forward flexion limited to, at most, 30 degrees, to include in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, IVDS, or associated objective neurological abnormalities other than separately rated radiculopathy due to sciatic nerve involvement of the bilateral lower extremities.

4. For the entire appeal period, the Veteran's right knee instability resulted in, at most, moderate impairment.

5. For the entire appeal period, the Veteran's right knee chondromalacia with chronic synovitis is manifested by objective evidence of arthritis with painful motion resulting in flexion limited to no more than 85 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination or as a result of repetitive motion and/or flare-ups, without ankylosis, dislocation or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum.

6. Prior to April 9, 2014, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent prior to September 20, 2012, in excess of 20 percent from September 20, 2012 to April 9, 2014, and in excess of 40 percent thereafter for DDD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242-5237.

2. The criteria for a rating in excess of 20 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257.

3. The criteria for a rating in excess of 10 percent for right knee chondromalacia with chronic synovitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260.

4. Prior to April 9, 2014, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1969 to November 1971. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2011 (back and right knee disabilities) and October 2012 (TDIU) by a Department of Veterans Affairs (VA) Regional Office (RO). 

In March 2019 and February 2021, the Board remanded the case for additional development. Following a review of the record, the Board determines that there was substantial compliance with the Board's February 2021 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998).

While on remand, the Veteran indicated on several occasions he wished to withdraw his appeal. In this regard, in February 2021 the Veteran telephoned the RO and stated he wished to drop his appeal. Again, in August 2021, the Veteran cancelled his VA examinations via telephone call stating he was dropping the claim and will not attend any appointments. Additionally, on September 27, 2021, VA received a letter from the Veteran in which he stated he wanted to drop the appeal, but then asked the Board to "make your decision without additional submissions, arguments, or evidence." 

Specifically, a withdrawal may be made by the appellant or by his or her authorized representative. In addition, for withdrawals not made on the record at a Board hearing, such must be in writing and include the file number and a statement that the appeal is withdrawn. Hembree v. Wilkie, 33 Vet. App. 1 (2020). Further, a withdrawal must be "explicit, unambiguous, and undertaken with a full understanding of its consequences." Acree, 891 F.3d at 1013; DeLisio, 25 Vet. App. at 57. However, given that the Veteran's August 2021 telephone call was not in writing, and the conflicting statements of his September 2021 letter, the Board contacted the Veteran's representative for clarification. In response, on October 26, 2021, the Board received an email from the Veteran's representative stating the Veteran wished "to have the judge decide his claim," indicating he did not want to withdraw his appeal. Thus, these claims now return to the Board for further appellate review. 

INCREASED RATINGS

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

1. Entitlement to an initial rating in excess of 10 percent prior to September 20, 2012, 20 percent from September 20, 2012 to April 9, 2014, and 40 percent thereafter for degenerative disc disease (DDD) of the lumbar spine.

The Veteran's lumbar spine disability is evaluated as 10 percent disabling as of October 5, 2010, the date of service connection, to September 19, 2012, and 20 percent disabling from September 19, 2012 to April 9, 2014 pursuant to DC 5242, and as 40 percent disabling thereafter, pursuant to DC 5242-5237 pertinent to lumbosacral or cervical strain, which, in turn, is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. §§ 4.25, 4.71a.

Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Such provides for a 20 percent rating where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id.

IVDS may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table).

The IVDS Rating Formula provides that a 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a.

As an initial matter, the Board notes that the record does not show, and the Veteran does not contend, that he has IVDS of the lumbar spine disability requiring bed rest prescribed by a physician and treatment by a physician. In this regard, his treatment records are negative for such a diagnosis, and while his September 2012 VA examinations noted a diagnosis of IVDS, such was without incapacitating episodes. Further, VA examinations conducted in August 2011, May 2014, June 2017, and December 2019 are negative for a diagnosis of IVDS related to the Veteran's service-connected spine disabilities. Consequently, the IVDS Rating Formula is inapplicable.

The Board further finds that ratings in excess of 10 percent disabling prior to September 20, 2012, 20 percent disabling from September 20, 2012 to April 9, 2014, and 40 percent disabling thereafter for the Veteran's lumbar spine disability is not warranted under the General Rating Formula. 

In this regard, VA treatment records from 2010 through 2012 reflect the Veteran's complaints of back pain that never goes away. However, he denied numbness, tingling, or bladder and bowel dysfunction. In January 2012, he began physical therapy for his back pain, which he stated was constant and aggravated by prolonged walking, sitting, bending, lifting, and standing, and disturbed the Veteran's sleep. June 2012 treatment records reflect the Veteran had a forward bend to about 60 degrees. See June 2010, September 2011, January 2011, January 2012, and June 2012 VA treatment records. 

At an August 2011 VA spine examination, the Veteran reported having chronic back pain after a fall in 2007 when his service-connected right knee gave out. The examiner diagnosed the Veteran with DDD of the lumbar spine. Upon physical examination, the Veteran's forward flexion of was limited to 80 degrees, with extension limited to 25 degrees, with pain. He denied flare-ups at the time of examination and was able to perform repetitive use testing without additional loss of range of motion. However, he had slightly decreased movement and pain on movement was noted following repetitive use testing. There was no evidence of guarding or muscle spasms, and strength testing was normal on the right, but left knee extension was 4/5 on the left. The examiner noted the Veteran's back disability would have some impact on his ability to work as he would be unable to do any prolonged standing or sitting, or significant lifting.

Thus, based on the foregoing, the Board finds that the evidence reflects that, prior to September 20, 2012, the Veteran's back disability resulted in flexion in excess of 60 degrees and a combined range of motion in excess of 120 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Furthermore, there was no guarding, muscle spasms, or ankylosis. Consequently, a rating in excess of 10 percent under the General Rating Formula is not warranted. 

The Veteran underwent a VA general medical examination on September 20, 2012, which was the basis for the assignment of his increased rating of 20 percent as of such date. The examiner diagnosed the Veteran with lumbar osteoarthritis and DDD. Upon physical examination, the Veteran's forward flexion of was limited to 45 degrees, with extension limited to 10 degrees. He was able to perform repetitive use testing with additional loss of range of motion further limiting flexion to 40 degrees and extension to 5 degrees with less movement than normal, excess fatigability, and pain on movement was noted following repetitive use testing. The Veteran reported flare-ups that forced him to sit or lie down when experiencing muscle spasms, and he uses Oxycodone for breakthrough pain as well as a hearing pad. The examiner noted guarding or muscle spasms, and an abnormal spinal contour. Strength testing was normal with the exception of 4/5 for right hip flexion, and muscle atrophy in the right quadricep. The examiner also noted the Veteran had IVDS, but without incapacitating episodes over the last 12 months. 

VA treatment records continue to reflect the Veteran reported chronic back pain, and some numbness in his right leg, but no bladder or bowel problems. See January 2013, June 2013, August 2013, November 2013, and March 2014 VA treatment records. At a January 2013 neurosurgery appointment, the Veteran reported low lumbar back pain. Upon testing he was able to forward bend to 60 degrees. 

The Veteran underwent another VA examination in May 2014, where the examiner diagnosed him with degenerative arthritis of the spine and spondylolisthesis. At the time, the Veteran reported lower back pain with flare-ups that caused him to cease activity and rest. Upon examination, forward flexion of the thoracolumbar spine was limited to 30 degrees, with full extension, right and left lateral flexion were both limited to 10 degrees, and right and left lateral rotation were both limited to 10 degrees, with pain. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. However, functional loss, including less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing and/or weight-bearing were noted. Localized tenderness or pain to palpitation of joints was noted; however, there was no guarding or muscle spasm of the spine. Muscle strength, reflex and sensory testing was normal. No neurologic abnormalities other than mild radiculopathy of the bilateral lower extremities were noted. Finally, the examiner concluded that the Veteran's lumbar spine disability would impact his ability to work as prolonged sitting, standing, and any attempted repetitive heavy lifting, bending, and stooping would cause increased discomfort and pain. However, the examiner stated that no specific degree of limitation of range of motion during a flare-up could be accurately estimated. 

Based on the foregoing, the Board further finds that, prior to April 9, 2014, the Veteran's DDD of the lumbar spine with spondylosis manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Specifically, at the May 2014 VA examination, he had forward flexion to 30 degrees, without additional loss of range of motion on repetitive use. Thus, a rating in excess of 20 percent for the Veteran's lumbar spine disability under the General Rating Formula prior to April 9, 2014, are not warranted. 

As of April 9, 2014, the Veteran's back disability is evaluated as 40 percent disabling. Thus, in order to warrant a higher rating, the evidence must demonstrate unfavorable ankylosis of the entire thoracolumbar spine or entire spine, or IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. However, the evidence reflects that, while the Veteran has limited range of motion of his lumbar spine, such does not result in, or more nearly approximate, ankylosis, and he does not have IVDS. Thus, a rating in excess of 40 percent for his back disability is not warranted. 

The Veteran was afforded another VA spine examination in June 2017. At such time, the examiner diagnosed DDD of the lumbar spine, including spondylosis, and the Veteran reported his lower back pain and tingling in his legs have increased in intensity and frequency. He further reported flare-ups, which he described as a shooting pain, an 8 out of 10, that radiates down both legs and occurs after prolonged weight bearing and climbing. Physical examination revealed forward flexion was limited to 30 degrees, extension was limited to 5 degrees, right and left lateral flexion were both limited to 20 degrees, and right and left lateral rotation were both limited to 15 degrees, with pain. The Veteran had no additional loss of function or ROM after repetitive-use testing. The examiner noted she was unable to describe functional loss in terms of ROM during a flare-up without resorting to mere speculation. Tenderness on palpitation of the lower lumbar spine was noted, with no muscle spasms or guarding. Muscle strength testing, reflexes, and sensory examinations were normal. There were no neurologic abnormalities. No ankylosis was noted. Finally, the examiner found that the Veteran's lumbar spine disability would have an impact on his ability to work as prolonged sitting, standing and walking, heavy lifting, kneeling, squatting, climbing, and forward bending aggravates his back disability. 

In this regard, the March 2019 remand, the Board found that Sharp-compliant testing was not conducted during the Veteran's prior examinations in May 2014, and June 2017, and the case was remanded for an additional examination.

Thus, the Veteran was afforded another VA spine examination in December 2019. At such time, the examiner diagnosed DDD of the lumbar spine, including spondylosis, and the Veteran reported his lower back pain had worsened to the point of becoming constant, brought on by prolonged sitting, walking up the stairs, lifting his knees, twisting, and bending. He did not report flare-ups. Physical examination revealed forward flexion was limited to 20 degrees, extension was limited to 25 degrees, right lateral flexion was limited to 20 degrees, left lateral flexion was limited to 15 degrees, and right and left lateral rotation were both limited to 30 degrees, with pain. The Veteran had no additional loss of function or range of motion after repetitive-use testing, however after repeated use the examiner opined the Veteran would have additional functional loss of forward flexion was limited to 15 degrees, extension was limited to 20 degrees, right lateral flexion was limited to 15 degrees, left lateral flexion was limited to 10 degrees, and right and left lateral rotation were both limited to 25 degrees. Tenderness on palpitation of the lower lumbar spine was noted, with no muscle spasms or guarding. Muscle strength testing was normal bilaterally, with the exception of bilateral knee extension and bilateral hip flexion, which were 4/5. Reflexes were normal on the right, and hypoactive on the left, and decreased sensation on the bilateral lower leg/ankles and feet/toes. There were no neurologic abnormalities. No ankylosis was noted. Consequently, absent evidence of ankylosis, the Veteran is not entitled to a rating in excess of 40 percent for her low back strain under the General Rating Formula.

In regard to Note (1), there is no evidence of objective neurological abnormalities, other than the Veteran's separately rated radiculopathy due to sciatic nerve involvement of the bilateral lower extremities, the propriety of which were previously finally adjudicated, and disability ratings assigned since April 9, 2014. 

Furthermore, there is no evidence that the Veteran's service-connected back disability in IVDS. In this regard, such was not found on examination in the June 2017 or the December 2019 VA examination. Consequently, a higher rating under the IVDS Formula is not warranted. 

Pursuant to the February 2021 remand, the Agency of Original Jurisdiction (AOJ) scheduled the Veteran for a VA examination so as to assess the nature and severity of his back disability in July 2021. However, according to an internal VA document, the Veteran canceled his examination. As noted in the introduction, in July 2021, the Veteran cancelled such examination because he wished to withdraw his claim. Later he stated he wished the Board to "make [a] decision without additional submissions, arguments, or evidence." Thus, the Board will adjudicate the claim based on the evidence of record and any additional evidence expected to be obtained as a result of the aforementioned VA examination cannot be considered herein. 38 C.F.R. § 3.655; Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 

Thus, for all the reasons laid out above, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent prior to September 20, 2012, 20 percent from September 20, 2012, to April 9, 2014, and 40 percent thereafter, for DDD of the lumbar spine. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3.

2. Entitlement to a rating in excess of 20 percent for right knee instability. 

3. Entitlement to a rating in excess of 10 percent for right knee limitation of flexion.

For the entire appeal period, the Veteran's right knee instability is evaluated as 20 percent disabling pursuant to DC 5257. 38 C.F.R. §§ 4.59, 4.71a. He is also in receipt of a separate 10 percent rating for right knee chondromalacia, limitation of flexion as of April 9, 2014, pursuant to DC 5260. Id.

Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. DC 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. For a 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. DC 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. VA's General Counsel has also stated that separate ratings under 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. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). 

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 83 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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, applying the criteria that is more favorable to the Veteran.

Prior to February 7, 2021, DC 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 

As of February 7, 2021, DC 5257 provides ratings for patellar instability and recurrent subluxation or lateral instability. For the former, a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 

With regard to recurrent subluxation or lateral instability under the amended DC 5257, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistance device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 

Note (1) provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

In regard to the Veteran's reported knee symptoms, he described constant pain in the right knee, and that it "gives way" or "just isn't there to support me" in April 2010. He also reported weakness, stiffness, swelling, "locking," fatigability, and lack of endurance, and that he was taking daily pain medication. 

At the June 2010 VA examination, he described symptoms of weakness, lack of endurance, and occasional swelling, but did not report instability, giving way, locking, or episodes subluxation. He also denied flare-ups. Physical examination revealed right knee flexion limited to, at most, 120 degrees and full extension, without evidence of pain on motion. The examiner determined there was no objective evidence of edema, effusion, instability, tenderness, redness, heat, abnormal movement, guarding of movement, deformity, malalignment, or drainage. The Veteran's gait was normal when using the knee brace. No ankylosis was noted. 

The Veteran underwent another VA examination in August 2011, where he reported worsening right knee symptoms, and that he had worn a right knee brace for the past year. Physical examination revealed right knee flexion limited to 115 degrees and full extension, without additional limitation in range of motion following repetitive testing. The Veteran did not describe flare-ups. Muscle strength testing was 4/5 for both flexion and extension of the knee, and there was mild atrophy of the distal right quadricep. 

In October 2010, the Veteran submitted a statement that described how his knee buckles at times, causing him to fall. Additionally, in his November 2011 notice of disagreement (NOD), he alleged his most recent VA examination reflected more range of motion than usual, as he was taking Oxycodone, thus blocking his pain.

At his September 2012 VA General Medical examination, he reported a sense of grinding and popping, with intermittent swelling. Range of motion of the Veteran's right knee was zero to 100 degrees, with pain at 85 degrees. There was no limitation of extension. Repetitive use testing revealed flexion to 90 degrees but continued full extension. There was no history of recurrent subluxation or dislocation. Joint stability testing was normal, with the exception of the right knee Medial-lateral test, which was +1. The Veteran reported flare-ups when walking for more than 20 to 30 minutes.

VA treatment records continue to reflect the Veteran's reports of knee pain and/or instability. See February 2013, September 2013, November 2013, and December 2014 VA treatment records. 

On VA examination in May 2014, the Veteran reported pain, from dull to sharp in nature depending on his activity. Cracking and popping made it hard for him to squat and knee. He reported stiffness in cold weather, but there was no weakness, giving way, and there was no catching or locking. He described flare-ups, which caused him to cease activity and rest. Range of motion of the Veteran's right knee was zero to 90 degrees, without limitation of extension, and no additional limitation of function after repetitive use testing. There was no history of recurrent subluxation or dislocation. Joint stability testing was normal, with the exception of the right knee Lachman test, which was +1. The Veteran stated he did not use a knee brace.

The June 2017 VA examination revealed flexion limited to, at most, 120 degrees and full extension, with no additional loss after repetitive testing. Although the Veteran reported experiencing flare-ups, the examiner stated she was unable to describe functional loss during a flare-up as such would be speculation. There was no history of recurrent subluxation or lateral instability. Joint stability testing was normal. The Veteran reported regularly using a knee brace for his right knee.

In December 2019, the VA examiner diagnosed the Veteran with right knee chondromalacia with chronic synovitis, degenerative arthritis, right knee instability, and status post right knee replacement. At such time, the Veteran reported worsening pain, and that the knee gives out, causing him to fall 4 times in the previous 3 months. He reported regularly using a knee brace for his right knee. However, the Veteran denied flare-ups. The examiner observed right knee flexion limited to 85 degrees, with full extension. There was no additional loss or limitation following repetitive-use testing. There was no history of recurrent subluxation, but a moderate history of lateral instability. However, joint stability testing revealed no joint instability. 

As noted above, the Veteran cancelled VA examination of his right knee scheduled in July 2021. Thus, the Board will adjudicate the claim based on the evidence of record and any additional evidence expected to be obtained as a result of the aforementioned VA examination cannot be considered herein. 38 C.F.R. § 3.655; Wood, 1 Vet. App. at 193. 

 

Instability

The Veteran is in receipt of a 20 percent rating for right knee instability. Such evaluation has been in effect since August 6, 1979 . This evaluation is protected because it remained in place for over 20 years. Notably, DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. English v. Wilkie, 30 Vet. App. 347 (2018). However, while the Veteran is competent to describe feelings of giving way, he is not competent as a lay person to diagnose clinical lateral instability or recurrent subluxation as such requires the administration and interpretation of specialized testing of the ligaments and patella, respectively. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

Upon review, the Board finds the criteria for higher ratings under either the old or amended Diagnostic Code 5257 have not been met at any time during the appeal period. VA examiners in June 2010, June 2017, and December 2019 determined that, despite the Veteran's subjective reports of buckling and instability, he did not have instability, subluxation, or dislocation on physical examination. However, VA examination in September 2012, revealed slight medial-lateral instability of the right and a May 2014 VA examination revealed slight anterior instability of the right knee, but there was no evidence or history of recurrent patellar subluxation/dislocation. The Board notes the Veteran's reports of falls, and his use of a knee braces at times during the appeal period. Therefore, based on the results from objective testing and related lack of functional impairment, the Board finds that the Veteran's instability of the right knee is no more than slight. Consequently, given the inclusion of symptomatic residuals of semilunar cartilage removal, and the time length of the Veteran's evaluation, a rating in excess of 20 percent is not warranted.

Limitation of Motion

As of April 9, 2014, the Veteran has been in receipt of a 10 percent rating under DC 5260, limitation of flexion of the knee based on painful motion. Based on the foregoing, the Board finds that the Veteran's right knee disability does not warrant ratings in excess of 10 percent based on limitation of motion under DC 5260 or DC 5261. Specifically, the evidence demonstrates that his right knee extension has remained full; and his right knee flexion is limited to, at most, 85 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. 

The Board has also considered whether the Veteran is entitled to any additional separate ratings for his right knee disability. However, as the evidence does not show ankylosis, impairment of the tibia or fibula, or genu recurvatum, higher or separate ratings under DCs 5256, 5258, 5262, and 5263, respectively, are not warranted. Further, the Veteran's residuals of removal of semilunar cartilage are contemplated in hs DC 5257 rating; thus, a separate rating under DC 5259 is likewise not warranted.

Other Considerations

In reaching the foregoing conclusions, the Board acknowledges the Veteran's belief that his back and right knee disabilities are more severe than as reflected by the current disability ratings. However, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his bilateral knee disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disabilities. 

The Board has also considered whether additional staged ratings are appropriate for the Veteran's service-connected back and right knee disabilities; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disabilities are not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Thus, the Board finds that increased ratings for the Veteran's right knee disabilities are not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against such claims, the benefit of the doubt doctrine is not applicable in such regard and the Veteran's increased rating claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

4. Entitlement to a TDIU prior to April 9, 2014. 

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a).

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). Thus, when 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); 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).

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.

Although VA did not receive the Veteran's Application for Increased Compensation Based on Unemployability (VA 21-8940), until November 16, 2010, the appeal period before the Board stems from receipt of the Veteran's claim for an increased rating for his service-connected right knee disability on February 25, 2010, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the record reflects the Veteran is in receipt of a TDIU as of April 9, 2014. Further, in his August 2014 Veteran's Application for Increased Compensation based on Unemployability (VA Form 21-8940) he reported working 40 hours a week in sales until February 2012 and his gross earnings were $2,100.00 per month. The Board notes the Veteran reported missing approximately 6 days or work each month due to his service-connected posttraumatic stress disorder (PTSD), back, and knee disabilities. However, he continued to work and reported an income well over the poverty guidelines during such time period. Consequently, as the Veteran was employed in a substantially gainful occupation prior to February 1, 2012, a TDIU is not warranted prior to such date. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Thus, the remaining inquiry is whether the Veteran's service-connected disabilities alone rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history from February 1, 2012 to April 9, 2014.

In this regard, from February 1, 2012 to April 9, 2014, the Veteran is service-connected for PTSD, evaluated as 30 percent disabling; right knee instability, evaluated as 20 percent disabling; DDD of the lumbar spine with spondylosis, evaluated as 10 percent disabling prior to September 20, 2012, and 20 percent thereafter; and bilateral hearing loss, evaluated as noncompensably disabling, which result in a combined disability rating of 50 percent prior to September 20, 2012, and 60 percent thereafter. As such, he does not meet the schedular threshold requirement for a TDIU. Nonetheless, if it is shown that such disability renders the Veteran unable to secure or follow a substantially gainful occupation, the claim may be referred to the Director of Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b).

Per the record, the Veteran's highest level of education is two years of college, and his employment history involved working in motorcycle sales and/or marketing from January 2008 to February 2012. According to a September 2012 examination report, prior to working in sales the Veteran owned a printing company since his discharge from the military. 

In regard to the functional impairment associated with the Veteran's service-connected disabilities, as noted above, just prior to the period on appeal, the Veteran underwent VA examination for his service-connected back and knee disabilities. At such time, the examiner noted the Veteran's back and right knee disabilities would have some impact on his ability to work as he would be unable to do any prolonged standing. The examiner further opined the Veteran's back disability would leave him unable to tolerate prolonged sitting or significant lifting.

At a May 2012 PTSD examination, when asked about his previous employment difficulties, the Veteran indicated that he was often pressed as a consultant to tell companies what they wanted to hear, whereas he believed his job to be telling companies how to improve sales. He described himself as being very "direct" as part of his job but also indicated that he can be "diplomatic if I need to be." However, the examiner noted this approach appeared to be more a part of his direct interpersonal style and preference for doing business than due to increased irritability or outbursts of anger per se. Further, when asked about reasons for unemployment, the Veteran reported that his previous career in motorcycles parts sales was very limited in scope, and he is unable to find another position due to lack of opportunities in this area. The examiner noted the Veteran chose not to pursue other related fields but did not cite any specific mental health symptoms that prevent him from doing so. The Veteran endorsed his belief that he would be able to perform well in a similar sales position if it became available.

The September 2012 VA examiner found his back and right knee disabilities, would impact his ability to work. Specifically, the examiner noted right knee would not be able to do sustained or repetitive foot controls or ladders and both the knee and the back disabilities and would limit the Veteran's ability to crouch, squat, and engage in heavier lifting and carrying. The examiner opined the Veteran less likely than not retains the strength and endurance to re-enter the labor market in even a sedentary-physical level employment setting. Further, he noted the Veteran was on long and short acting narcotics, and that his cardiac and peripheral vascular disease (PVD) would further compound his ability to perform sedentary work. However, the Board notes the Veteran in not service-connected for a cardiac disorder or PVD. Thus, his opinion is less probative to the matter before the Board.

A September 2012 audiology examination found the Veteran's hearing loss would have no impact on his ability to work.

Additionally, the Board notes the Veteran's August 2014 VA Form 8940 reflects the Veteran applied for a job as a clerk in March 2014. Although unsuccessful in obtaining employment, such indicates Veteran found himself capable of gainful employment.

Based upon a review of the foregoing, the Board finds that the Veteran's PTSD, back and right knee disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, the record reflects that such disabilities, to specifically include his back and right knee disabilities, limit the Veteran in regard to his ability to perform physical work, to include difficulty with prolonged standing, sitting, and walking, lifting, crouching, and squatting. However, the Board finds the foregoing limitations would not interfere with the Veteran's ability to successfully secure and follow a substantially gainful occupation consistent with his experience in owning his own business and in sales and marketing. While the Board notes the Veteran's sales experience has been primarily motorcycle sales, such provides skills in customer service, presentation, negotiation, communication, and management that are applicable in most sales positions. In this regard, the Board finds that prior to April 9, 2014, the Veteran was capable of performing the mental and physical acts necessary for the successful performance of such type of position as such do not require physically intensive activities and are generally performed while sitting or standing at a desk. In this regard, such would allow the Veteran to alternate between sitting and standing and would not require that he remained seated for more than 10 minutes at a time, which the Board finds is consistent with the functional limitations associated with the Veteran's service-connected disabilities as reflected by the medical and lay evidence of record. Withers v. Wilkie, 30 Vet. App. 139 (2018).

In sum, Board finds that the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation consistent with his education and work history prior to April 9, 2014. As such, referral to the Director of Compensation Service for consideration of a TDIU on an extra-schedular basis is not warranted. As the preponderance of the evidence is against the Veteran's claim for a TDIU prior to April 9, 2014, the benefit-of-the-doubt doctrine is not applicable and such must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.16.

 

A. HODZIC

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. M. Kelly, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.