Citation Nr: 21074720 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-58 291 DATE: December 16, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to January 7, 2020, for right knee degenerative joint disease, is denied Entitlement to a rating in excess of 30 percent from March 1, 2021, for right knee total arthroplasty, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) from March 31, 2014, to May 31, 2015, and from June 6, 2018, to present, is remanded. Entitlement to a TDIU from June 1, 2015, to June 5, 2018, is remanded. FINDINGS OF FACT 1. The most probative evidence does not reflect that the Veteran's service-connected right knee degenerative joint disease has been manifested by flexion limited to 30 degrees or less, to include upon repetitive motion testing, during a flare-up of symptoms, in weight-bearing and nonweight-bearing positions, and on passive and active motion prior to January 7, 2020. 2. The most probative evidence does not reflect that the Veteran's service-connected right knee total arthroplasty has been manifested by chronic residuals consisting of severe painful motion or weakness in the right knee from March 1, 2021. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to January 7, 2020, for right knee degenerative joint disease, are not met. 38 U.S.C. §§ 1155, 5121A; 38 C.F.R. §§ 3.1010, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 30 percent from March 1, 2021, for right knee total arthroplasty, are not met. 38 U.S.C. §§ 1155, 5121A; 38 C.F.R. §§ 3.1010, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1982 to March 1983, from May 1987 to October 1987, from February 2003 to May 2004, and from January 2008 to September 2010. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In April 2021, the Veteran testified at a Board hearing conducted with the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran has indicated that he believed that it would be difficult for to obtain substantially gainful employment because of his service-connected disabilities. The Board finds that he has therefore implicitly raised a claim for TDIU as an included claim within his increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). Consequently, the Board has added this issue to the issues for current appellate consideration. This claim was previously before the Board in June 2021, at which time it was remanded for further development. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to a rating in excess of 10 percent prior to January 7, 2020, and in excess of 30 percent from March 1, 2021, for right knee degenerative joint disease Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the scheduler criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995); Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017); VAOPGCPREC 9- 98. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity or atrophy of disuse and instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain is contemplated in the rating criteria for all musculoskeletal disabilities, and therefore it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of any range of motion testing "for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Arthritis due to trauma under Diagnostic Code 5010 substantiated by X-ray findings is rated as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5260 which provides that limitation of flexion of the knee to 60 degrees warrants a zero percent evaluation, limitation of flexion of the knee to 45 degrees warrants a 10 percent evaluation, limitation of flexion of the knee to 30 degrees warrants a 20 percent evaluation, and limitation of flexion of the knee to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 provides that limitation of extension of the knee to 5 degrees warrants a zero percent evaluation, limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation, limitation of extension of the knee to 15 degrees warrants a 20 percent evaluation, limitation of extension of the knee to 20 degrees warrants a 30 percent evaluation, limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation, and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings under Diagnostic Code 5260 and 5261 may be assigned for a disability of the same joint if range-of-motion findings equate to compensable evaluations under each Diagnostic Code. See VAOPGCPREC 9- 2004. Normal knee motion is from zero degrees to 140 degrees. See 38 C.F.R. § 4.71, Plate II. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, the following evaluations are assignable for other impairment of the knee, to include recurrent subluxation or lateral instability: 30 percent for severe, 20 percent for moderate, and 10 percent for slight. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. Diagnostic Code 5055 was amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). When 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). As of February 7, 2021, under the amended version of Diagnostic Code 5055, for a total knee replacement with prosthesis, a 100 percent evaluation is assigned for 1 year following implantation of the prosthesis. After that year, a minimum rating of 30 percent disabling is assigned. With intermediate degrees of residual weakness, pain or limitation of motion, the rater is directed to evaluate as analogous to Diagnostic Codes 5256, 5261, or 5262. A 60 percent evaluation is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. A 30 percent evaluation is the minimum evaluation for a total replacement only. A note to Diagnostic Code 5055 states that at the conclusion of the 100 percent evaluation period, evaluate resurfacing under diagnostic codes 5256 through 5262; there is no minimum evaluation for resurfacing. Analysis The Veteran's service-connected right knee degenerative joint disease was rated as 10 percent disabling under Diagnostic Code 5260 prior to January 7, 2020. Following a right knee total arthroplasty, the Veteran was awarded a 100 percent evaluation based on convalescence, effective January 7, 2020. A 30 percent evaluation under Diagnostic Code 5055 was assigned from March 1, 2021, as the total evaluation was continued for 13 months following implantation of the prosthesis. The evidence of record describing the frequency, severity, and duration of the Veteran's service-connected knee disabilities are reflected in voluminous VA treatment records, the reports of VA examinations completed in September 2014, August 2016, January 2018, September 2021, and his lay statements, to include his sworn testimony at the April 2021 Board hearing. As an initial matter, the Board observes that the Veteran has not asserted, and the record does not reflect, that his service-connected right knee disability is manifested in ankylosis of the joint, dislocated semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, during the appeal period. As such, his appealed issues cannot be availed by application of the pertinent facts to the criteria within 38 C.F.R. § 5.71a Diagnostic Codes 5256, 5258, 5259, 5262, and 5263, throughout the pendency of the appeal. Applying the pertinent medical evidence to the rating criteria, the most limited flexion of the right knee, to include on active and passive motion, in weight-bearing and nonweight-bearing positions, after repetitive motion testing, and during flare-ups of symptoms, was to 40 degrees, but no less, at the January 2018 VA examination. The most limited extension of the right knee, to include on active and passive motion, in weight-bearing and nonweight-bearing positions, after repetitive motion testing, and during a flare-up of symptoms, was to 5 degrees, but no greater, at the September 2014 VA examination. The Board observes that flexion of the knee limited to 40 degrees does not meet the criteria for an evaluation in excess of 10 percent under Diagnostic Code 5260 and extension limited to 5 degrees does not meet the criteria for a compensable evaluation under Diagnostic Code 5261 at any time period on appeal. With regard to a rating in excess of 30 percent from March 1, 2021, there is no evidence that the Veteran's right knee disability manifested with severe painful motion or weakness in the knee. Specifically, at the September 2021 VA examination, the Veteran reported his right knee symptoms improved after his operation but there was still residual decreased stamina and some mild intermittent achiness. The examiner also noted intermediate degrees of residual weakness, pain, or limitation of motion. As such, a rating in excess of 30 percent from March 1, 2021, is not warranted. With regards to a total disability rating based on individual unemployability due to service-connected disability (TDIU), the Board notes that the September 2021 examiner found that the Veteran was unable to do work related tasks requiring squatting, the use of stairs frequently, or working in a squatted position due to his bilateral knee condition. The Board finds that he has therefore implicitly raised a claim for TDIU as an included claim within his increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). Lastly, neither the Veteran nor the record has raised the matters of entitlement to an extraschedular evaluation. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). As such, further action or discussion of this matter is unnecessary. REASONS FOR REMAND 1. Entitlement to a TDIU from March 31, 2014 to May 31, 2015, and from June 6, 2018 to present, is remanded. 2. Entitlement to a TDIU from June 1, 2015 to June 5, 2018, is remanded Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In the process of determining whether unemployability exists for TDIU, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by any non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes his case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). From March 31, 2014, to May 31, 2015, and from June 6, 2018, to present, the Veteran had a disability ratable at 40 percent and a combined rating of 70 percent or more for the rest of his disabilities. As such, he meets the schedular criteria for this time period on appeal. For the period from June 1, 2015, to June 5, 2018, the Veteran did not have a disability ratable at 40 percent; thus, he did not meet the schedular criteria for a TDIU rating for this time period. See 38 C.F.R. § 4.16(a). There is, however, plausible evidence of record that suggests the Veteran may have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities for this period, such that referral to the Director of Compensation Service for a possible extraschedular evaluation for TDIU under 38 C.F.R. § 4.16(b) is warranted. Specifically, the Veteran has indicated that he last worked in 2010 as a pilot in the U.S. Army, but was medically discharged due to a fall that damaged his knees. Since there is probative evidence of record that the Veteran may be unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, the Board therefore finds that consideration of this TDIU claim for extra-schedular consideration is appropriate under 38 C.F.R. § 4.16(b) for the period from June 1, 2015, to June 5, 2018. In light of these findings, the Board concludes that a remand is also necessary to afford the Veteran an opportunity to submit a VA Form 21-8940 so that the RO can develop the claim. The matters are REMANDED for the following action: 1. Contact the Veteran and ask that he complete a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. 2. After completing the above development, refer the issue to the Director, Compensation Service, for an opinion with respect to whether the Veteran is unemployable due to his service-connected disabilities under 38 C.F.R. § 4.16(b) for the period from March 31, 2014 to June 1, 2015. 3. Thereafter, adjudicate the Veteran's included claim for TDIU for the period from March 31, 2014. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.