Citation Nr: 21076305 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 08-23 731 DATE: December 23, 2021 ORDER Entitlement to a 20 percent disability rating, but not higher for left knee painful limitation of flexion is granted prior to September 9, 2014. Entitlement to a rating greater than 10 percent for left knee degenerative arthritis is denied beginning November 1, 2014. Entitlement to 30 percent disability rating for left knee limitation of extension is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to September 9, 2014, the probative evidence of record reflects that left knee flexion was limited to 30 degrees due to painful motion. 2. Beginning November 1, 2014, the probative evidence of record reflects left knee flexion was greater than 60 degrees. 3. The probative evidence of record reflects left knee extension was limited to 20 degrees due to painful motion. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating, but no higher, for left knee arthritis limitation of flexion are met prior to September 9, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260. 2. The criteria for a rating in excess of 10 percent for left knee arthritis limitation of flexion have not been met since November 1, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260. 3. The criteria for a 30 percent disability rating, but no higher, for left knee arthritis limitation of extension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an Agency of Original Jurisdiction (AOJ) rating decision issued by the Department of Veterans Affairs (VA). A May 2012 Board decision denied the Veteran's claims for higher ratings for left knee instability and left knee arthritis with painful motion. The Veteran appealed this decision to the U.S. Court of Appeals for Veteran's Claims (CAVC) and in April 2013 the parties agreed to a Joint Motion for Partial Remand (JMPR) vacating and remanding the Board's decision in regard to his left knee arthritis painful motion claim. The rating for instability was not disturbed and will not be further addressed. The claim for an increased rating for left knee arthritis with painful motion was remanded by the Board in September 2013, May 2014, June 2020, and May 2021. While the appeal was pending, an October 2013 rating decision granted service connection and assigned a separate, noncompensable rating for left knee degenerative joint disease with limitation of extension, effective October 15, 2013. As such, it has been included in this appeal. For the reasons described herein, the Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Increased Rating for Limitation of Flexion 2. Increased Rating for Limitation of Extension Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the evaluation must be based on the overall recorded history of a disability. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings may be appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran disagreed with an October 2007 rating decision that continued a 10 percent rating for left knee arthritis with painful motion. As a temporary 100 percent evaluation was in effect for left knee arthritis with painful motion from September 9, 2014, to October 31, 2014, that period will not be further discussed in this decision. 38 C.F.R. § 4.30. As noted above, a separate evaluation for left knee arthritis for limitation of extension was granted and is also before the Board at this time. The Veteran's left knee degenerative arthritis is rated under Diagnostic Code (DC) 5010-5260 for limitation of flexion with functional loss due to painful motion and Diagnostic Code 5010-5261 for limitation of extension. 38 C.F.R. §§ 4.20, 4.27; see 4.59 (the intent of the schedule is to recognize painful motion with joint as productive of disability and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). VA revised the criteria for evaluating musculoskeletal disorders during the pendency of the appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). The rating criteria for DC 5010 were renamed from arthritis due to trauma to post-traumatic arthritis and direct the evaluator to rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. The old criteria for DC 5010 direct that the disability be evaluated as degenerative arthritis as follows: Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating may be assigned for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating may be assigned for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. The rating criteria for DC 5260 and DC 5261 were not revised and remain as follows: Limitation of flexion of the leg is noncompensable when flexion is limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Limitation of extension of the leg is noncompensable when limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a. For disabilities evaluated based on limitation of motion, VA must determine the extent the disability results in an inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance as described in the provisions pertaining to functional impairment. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In so doing, VA should obtain examinations evaluating the disability in accordance with the regulations that provide information on whether the disability was manifested by functional loss. 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board notes that the criteria under DCs 5257, 5260, and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown. VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003, or limitation of motion codes (DCs 5260, 5261), and 5257. See VAOPGCPREC 23-97. VA General Counsel has also interpreted that, when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under DC 5257, the veteran would be entitled to a separate compensable evaluation under DC 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Furthermore, to warrant a separate rating from DC 5257, for arthritis based on X-ray findings and limited motion under DC 5260 or 5261, the limited motion need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings of arthritis and painful motion under 38 C.F.R. § 4.59. First, the Board finds the evidence at least in equipoise in support of a finding that a 20 percent disability rating is warranted for left knee arthritis for limitation of flexion with functional loss due to painful motion prior to September 9, 2014. 38 C.F.R. §§ 4.3, 4.7. Specifically, the Board finds the August 2007 VA examination and addendum opinion to be probative evidence in support of a 20 percent rating under Diagnostic Code 5260. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight of the opinions are within the province of the adjudicator); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion.). Specifically, the examiner noted left knee pain, locking, fatiguability, and lack of endurance and the Veteran's reports of pain with ambulation and occasionally at rest with 1-2 incapacitating episodes and flare-ups. Although flexion was measured to 130 degrees at the examination, an addendum reported pain following repetitive motion began at 30 degrees with objective evidence of painful motion, effusion, tenderness, and guarding. Resolving all reasonable doubt in favor of the Veteran, the Board finds such supports a 20 percent rating but no higher. In that regard the Board notes the other evidence of record does not indicate that left knee flexion was limited to 15 degrees or less at any point prior to September 9, 2014. Specifically, a January 2008 VA physical therapy record indicates he reported knee pain and his flexion was determined to be 120 degrees and his extension was 3 degrees. A March 2009 general VA examination noted limited motion, swelling, and weekly flare-ups with flexion limited to 100 degrees and pain on active motion. After repetitive motion, flexion was measured at 93 degrees and his extension remained full with objective pain limiting his motion. Similarly, October 2013 examination results reported flexion limited to120 degrees with painful motion beginning at 85 degrees. He was able to perform repetitive use testing and his left knee flexion was 110 degrees and his extension was 5 degrees. The report noted he experienced functional loss due to weakened movement, excess fatigue, pain on movement, swelling, and interference with weight bearing. The report also noted pain upon palpitation, no history of a patellar injury, no additional conditions, no meniscal conditions, and he constantly used a cane. A 20 percent rating for left knee limitation of flexion, but no higher, is warranted prior to September 9, 2014. Second, the Board finds a rating in excess of 10 percent for left knee arthritis limitation of flexion under DC 5260 is not warranted since November 1, 2014. Here, the record reflects that left knee flexion was limited, at most, to 120 degrees during this period of the appeal. The Board finds the January 2021 VA examination report and July 2021 addendum opinion, when read together, are probative evidence that weighs against the claim for a higher rating. See Guerrieri, 4 Vet. App. at 470-71; see also Prejean, 13 Vet. App. at 448-49. In January 2021 he underwent a VA knee examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. He subjectively reported that he did not experience flare-ups and did not report any functional loss or impairment. The report determined his flexion and extension were full and no pain, tenderness, pain on weight bearing, or crepitus were noted. He was able to perform repetitive use testing and no functional impairment or pain was noted. Since he denied experiencing flare-ups the examination did not conduct such testing. The report also determined he was negative for muscular atrophy, ankylosis, subluxation, recurrent effusion, patellar dislocation, meniscal conditions, or any other pertinent physical findings. In the remarks section the report noted there was no evidence of pain on passive range of motion or non-weight bearing situations. The July 2021 retrospective medical opinion included an in-person examination and a review of the Veteran's VA electronic folder. The examiner opined the left knee limitation of flexion use over time was limited to 130 degrees, to include during flare-ups, and his extension was full. Importantly, there is no evidence of record in conflict with the above. For example, a May 2015 private record reveals his left knee demonstrated full extension and 125 degrees of flexion with gross crepitation. A September 2015 private record indicates his left knee had "near full extension" and his flexion was 120 degrees with crepitus. An October 2015 private record indicates he had full extension and his flexion was 120 degrees, and September 2020 private medical records indicate he had "maybe 1+ effusion" with tenderness along the medial lateral aspect of the patella. A rating in excess of 10 percent for left knee arthritis limitation of flexion may not be assigned since November 1, 2014. Finally, the Board finds the evidence at least in equipoise in support of a finding that a 30 percent disability rating, but no higher, may be assigned for left knee arthritis based on limitation of extension. 38 C.F.R. §§ 4.3, 4.7. Specifically, the Board finds the October 2013 examination results finding left knee extension was limited to 5 degrees with painful motion beginning at 20 degrees to be probative evidence in support of a 30 percent rating. The examiner noted the Veteran's extension was 5 degrees after repetitive use testing and noted functional loss due to weakened movement, excess fatigue, pain on movement, swelling, and interference with weight bearing. There is no evidence of record indicating extension was limited to greater than 20 degrees at any point during the rating period. Resolving all doubt in favor of the Veteran, a 30 percent rating is warranted under DC 5261. The Board considers whether any other separate ratings may be assigned under the criteria for evaluating the knee and leg but finds no evidence of ankylosis, cartilage conditions, malunion or nonunion of the tibia and fibula. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-62. As to Diagnostic Code 5263, acquired traumatic genu recurvatum with objectively demonstrated weakness and insecurity in weight-bearing is rated at 10 percent. Here, the Board concedes the prior ratings under Diagnostic Code 5010 indicates he suffered a traumatic injury to his left knee. The Board also acknowledges the evidence indicates in August 2014 that he experienced "roughly 3 degrees of recurvatum." However, since 2014, the evidence of record contains a litany of private medical records that do not document any such symptoms. Indeed, the January 2020 VA examination report does not note any issues related to recurvatum. Considering the above, the Board finds the August 2014 record to be a finding of acute and transitory symptoms rather than an objective diagnosis of a recurring disability. As such, the Board finds a separate rating under Diagnostic Code 5263 is not warranted. In conclusion and for the reasons set forth above, a 20 percent rating, but not higher, is granted for left knee limitation of flexion prior to September 9, 2014; a rating in excess of 10 percent for left knee limitation of flexion is denied since November 1, 2014, and a 30 percent rating for left knee limitation of extension is granted. REASONS FOR REMAND TDIU A TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran's combined disability rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose, disabilities affecting a single system, e.g., nervous, will be considered a single disability. 38 C.F.R. § 4.16(a). VA will grant a TDIU when the evidence shows that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, 'entitlement to TDIU is based on an individual's particular circumstances.' Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran is service connected for the following disabilities: (1) tinnitus, rated as 10 percent disabling from December 14, 2009; (2) left knee limitation of flexion, now rated as 20 percent disabling prior to September 9, 2014 and 10 percent disabling since November 1, 2014; (3) left knee instability, rated as 10 percent disabling from July 4, 1989; (4) bilateral hearing loss, rated as noncompensable from December 14, 2009; (5) left knee limitation of extension, now rated as 30 percent disabling from October 15, 2013; and (6) a left knee scar rated as noncompensable from November 1, 2014. On remand, the AOJ should ascertain whether the Veteran meets the schedular criteria for TDIU following implementation of this decision. 38 C.F.R. § 4.16(a). For any period on appeal that the schedular criteria for TDIU are not met, the Board finds referral to the Director of the Compensation Service for extraschedular consideration is warranted in this case. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). In that regard, the Board notes that the Court discussed in Ray v. Wilkie whether a referral for extraschedular TDIU under 38 C.F.R. § 4.16(b) may be warranted and noted there was an economic and non-economic component to the term "unable to secure and follow a substantially gainful occupation." 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. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). With respect to the economic component of Ray, the Board determines that the Veteran's employment prior to 2007 was not marginal in nature. As reflected by his last VA Form 21-4192, he was last employed as a high school janitor on a full-time basis. His earnings in 2007 were $16,337.29, which is above the poverty threshold for that year. Nonetheless, during his August 2008 VA knee examination he reported he searched for sedentary employment but he "could not find anything that paid much." Additionally, since 2007, the evidence of record does not contain any indication he has been able to engage in any type of employment and no income has been provided since 2007. Thus, since his last period of employment, the evidence points towards his service-connected disabilities inhibiting his ability to seek employment. With respect to the noneconomic component of Ray, the evidence of record indicates he graduated high school. Moreover, he has alleged his service-connected left knee disabilities impacted his ability to seek employment. See July and August 2007 Statements. Further, an August 2019 private physician Dr. M.K. opined that the Veteran's his disabilities rendered him unable to perform physical labor; however, it is unclear if that opinion also includes his non-service-connected back disability. In addition, August 2007 and February 2021 VA knee examination reports indicated his ability to perform occupational tasks would be inhibited. Based on the above, the record reflects a reasonable possibility that the Veteran may be unemployable by reason of his service-connected disabilities; thus, the criteria for a referral to the Director for entitlement to a TDIU on an extraschedular basis are met. Ray, 31 Vet. App. at 72-73. Accordingly, the issue of entitlement to a TDIU is remanded for referral to the Director of the Compensation Service in accordance with 38 C.F.R. § 4.16(b). This matter is remanded for the following action: 1. After implementing the determinations above, refer any period on appeal that does not meet the schedular criteria for TDIU to the Director of the Compensation Service for consideration of the issue of entitlement to extraschedular TDIU under 38 C.F.R. § 4.l6(b). 2. After completing the directive above to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. A. Odya-Weis Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.