Citation Nr: 21075487 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-11 556 DATE: December 20, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for left knee condition with painful limitation of motion is denied. REMANDED Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disorders (TDIU) is remanded. FINDING OF FACT The Veteran's left knee condition is manifested by painful limitation of motion with flexion limited to, at worst, 80 degrees and with extension, at worst, to 0 degrees. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for left knee condition with painful limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1981 to August 1985 and from June 1989 to November 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2015 by the Department of Veterans Affairs (VA) Regional Office. In an August 2019 decision, the Board denied, inter alia, a rating in excess of 10 percent for left knee limitation of flexion as a result of the left knee internal derangement. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the August 2019 Board's decision in part and remanding for further development. In March 2021, the Board remanded the case and took jurisdiction over TDIU as part and parcel of the increased rating claim currently on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). The Board remanded to request the Veteran complete and submit a VA 21-8940 form and to schedule a new VA examination for the knee condition. The Veteran was provided with a VA 21-8940 form (which he did not submit) and a VA examination was conducted. These claims were last before the Board in September 2021 where they were remanded for additional development. Entitlement to a disability rating in excess of 10 percent for left knee condition with painful limitation of motion. The Veteran asserts that his left knee disability warrants a rating in excess of 10 percent. The disability is rated under Diagnostic Code 5260. Limitation of flexion and extension of the knee joint are evaluated under DCs 5260 and 5261, respectively. Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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 range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In VAOPGCPREC 9-2004, VA's Office of General Counsel held that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (Oct. 6, 2004). The Veteran has already been awarded a 10 percent rating for painful limitation of motion for the left knee internal derangement, limitation of flexion under 38 C.F.R. § 4.59. He has also been assigned a separate 20 percent rating for left knee instability. Upon review of the evidence of record, the Board finds that a rating in excess of 10 percent for painful limitation of motion is not warranted. The evidence includes an October 2021 VA examination report. Range of motion testing revealed flexion from 0 to 90 degrees and extension to 0 degrees on both active range of motion. Pain was noted on both flexion and extension, but not on passive range of motion, weight-bearing, or non-weight-bearing. The Veteran was unable to perform repetitive use testing due to fear of pain. He was not being examined immediately after repetitive use over time, but the examiner noted that pain, fatigability, weakness, lack of endurance, and incoordination limited functional ability with repetitive use over time, with estimated range of motion after such use being from 0 to 80 degrees of flexion, and extension from 80 to 0 degrees. The examination was being conducted during a flare-up, and the examiner noted that pain, fatigability, weakness, lack of endurance, and incoordination limited functional ability during flare-ups, with estimated range of motion during a flare-up from 0 to 90 degrees of flexion, and extension from 90 to 0 degrees. There was no atrophy or ankylosis. No other evidence of record indicates any identifiably greater level of impairment or reduced range of motion associated with the service-connected left knee condition than that detailed in the October 2021 VA examination report. Based on a review of the evidence, the Board finds that the Veteran is not entitled to an increased rating for a left knee condition based on limitation of motion. While the Veteran had limitation of flexion, duplicate ratings are only appropriate for compensable levels of limitation. See VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004). Simply put, flexion in the knee has exceeded 45 degrees throughout the appeal period, and extension has been full to 0 degrees throughout, even when accounting for episodes of flare-ups with increased pain. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. The evidence of record did not show that the Veteran had ankylosis (Diagnostic Code 5256), semilunar dislocated cartilage (Diagnostic Code 5258), symptomatic removal of semilunar cartilage (Diagnostic Code 5259), impairment of the tibia or fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263. See October 2021 VA examination report. Furthermore, the Board notes that the Veteran is already in receipt of 20 percent rating for left knee instability. The Board recognized the Veteran's reports of continued left knee pain as explained in the VA examination report discussed above. The Board considered this knee pain, as well as any additional limitations of motion due to pain (including difficulty with walking, climbing stairs, and running). However, even considering additional limitation of motion or function of the knee due to pain or other symptoms such as swelling, weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the left knee disability more nearly approximates the criteria for higher ratings. Estimated range of motion after repetitive use during the VA examination discussed above showed a decreased range of motion in the left knee in flexion to 80 degrees. As such, even considering the Veteran's complaints of pain and flare-ups, the Board finds that the severity of the Veteran's left knee disability does not more nearly approximate the criteria for a higher rating. For these reasons, a rating in excess of 10 percent for painful limitation of motion of the left knee is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee condition. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to TDIU is remanded. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The Veteran has the following disabilities that are service connected: irritable bowel syndrome, status post appendectomy, rated as 30 percent disabling; internal derangement, left knee (instability), rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; internal derangement, left knee (limitation of flexion), rated as 10 percent disabling; status post appendectomy scar, rated as 0 percent disabling. The Veteran's combined rating is 60 percent disabling. Thus, the schedular criteria for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have not been met. As such, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16 (b) is warranted. As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). In March 2021 and September 2021, the Board remanded this case with instructions for the AOJ to ask the Veteran to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Following the Board's remand directives, the AOJ notified the Veteran in an April 2021 letter, and again in a September 2021 letter, to complete and return the enclosed VA Form 21-8940 and, if possible, VA Form 21-4192. However, the Veteran did not submit a completed VA Form 21-8940. As the Veteran failed to submit a proper VA-Form 21-8940, the AOJ did not refer the claim to the Director of Compensation and Pension Service and continued a denial of benefits sought. See Supplement Statement of the Case (SSOC), dated in July 2021 and October 2021. Nevertheless, the Board finds that there is sufficient evidence in the record now for the AOJ to refer the Veteran's claim to the Director, Compensation Service for extraschedular TDIU consideration even without a completed VA Form 21-8940. In this regard, the Board previously noted lay statements submitted by the Veteran in August 2015 and in his notice of disagreement that same month indicating that the severity of his service-connected disabilities "make it impossible to work or hold a job." In a September 2016 VA Request for Hardship Determination form, the Veteran explained that felt he was "physically unable to obtain gainful employment of any kind" and was dependent of his family for financial support. Moreover, the October 2021 examiner determined the Veteran is limited in running, jumping, prolonged ambulation, prolonged standing, and prolonged sitting. As such, the Veteran was found able to perform sedentary work only. Accordingly, the Board will remand the case for referral to the Director, Compensation Service, for consideration of entitlement to a TDIU. 38 C.F.R. § 4.16(b). As the claim for entitlement to a TIDU is being remanded on an extraschedular basis, the Board finds that the Veteran should be provided with another opportunity to submit a completed VA Form 21-8940. The Veteran is reminded that the "duty to assist" is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Furnish the Veteran and his representative a VA Form 21-8940 and request that he return a completed form to VA. A copy of any request(s) sent to the Veteran, and any completed VA Form 21-8940 returned to VA, should be included in the claims file. (Continued on the next page) 2. Refer the Veteran's claim of entitlement to a TDIU to the Director of Compensation Services for extraschedular consideration. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.