Citation Nr: 21076792 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 13-06 111 DATE: December 27, 2021 ORDER A rating in excess of 10 percent for left knee patellofemoral syndrome is denied. A rating in excess of 10 percent for right knee patellofemoral syndrome is denied. Service connection for left knee limitation of extension is granted. Service connection for right knee limitation of extension is granted. REMANDED A separate rating for left knee limitation of extension. A separate rating for right knee limitation of extension. Entitlement to an initial rating in excess of 10 percent for residuals of status-post fracture of the fourth and fifth metatarsals, left foot. Entitlement to total disability based on individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran's left knee is manifested by flexion limited to no worse than 80 degrees. 2. The Veteran's right knee is manifested by flexion limited to no worse than 105 degrees. 3. A VA examiner has indicated that the Veteran experiences left knee and right knee limitation of extension during flare-ups. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee limitation of flexion is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 10 percent for right knee limitation of flexion is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260. 3. The criteria for service connection for left knee and right knee limitation of extension have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2005 to December 2009. The Veteran is unrepresented in this appeal. This case was previously before the Board of Veterans' Appeals (Board) in June 2018. The Board finds that there has been compliance with the prior remand directives as to the issues being decided in this appeal. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA amended portions of the criteria for rating Musculoskeletal System and Muscle Injuries effective from February 7, 2021. 38 CFR Part 4 RIN 2900AP88. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As there is no evidence dated subsequent to February 7, 2021 of record pertaining ot he knees of low back, the Board will apply the prior versions of the applicable regulations. 1. Rating in excess of 10 percent for left knee patellofemoral syndrome 2. Rating in excess of 10 percent for right knee patellofemoral syndrome. 3. Service connection for left knee limitation of extension. 4. Service connection for right knee limitation of extension. Diagnostic Code 5260 concerns limitation of leg flexion. Ten, 20, and 30 percent ratings are warranted where flexion is limited to 45, 30, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 pertains to limitation of leg extension. Ten, 20, 30, 40, and maximum 50 percent ratings are warranted where extension is limited to 10, 15, 20, 30, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Standard range of motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. A claimant who has both limitation of flexion and limitation of extension of the same leg may receive separate ratings under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-2004. A claimant who has arthritis and instability of the knee may receive separate ratings under Diagnostic Codes 5003 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98; VAOPGCPREC 23-97. The Veteran has been diagnosed with patellofemoral pain of the knees. He required knee braces and was taking medications including Hydrocodone. The Veteran indicated that he also would use ice packs and heating pads for knee pain relief. At his VA examinations the Veteran indicated that his knee symptoms have caused some limitation in his standing, walking, and squatting activities. He has also indicated that his knees would intermittently buckle and give way. Regarding an increased evaluation based on limitation of flexion, medical records, including May 2016 and March 2019 VA examinations, showed left knee flexion from 80 to 140 degrees, and right knee flexion from 105 to 140 degrees, at worst. The medical evidence does not show left knee or right knee flexion limited to 30 degrees, as required for the next higher evaluation of 20 percent disabling. Accordingly, an increased evaluation on the basis of limitation of left knee or right knee flexion is not warranted. The Board observes that the Veteran had full left knee and right knee extension on the May 2016 and March 2019 VA examinations. However, additional limitation of function due to factors such as knee pain, weakness, incoordination, and fatigability must also be considered. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has made credible complaints of left and right knee flare-ups, and examiners have indicated that the Veteran would sometimes have significant limitation of extension during such episodes. Accordingly, service connection for left knee and right knee limitation of extension is warranted. As for other potentially applicable diagnostic codes, the Board notes that a July 2021 RO decision granted the Veteran service connection for left knee and right knee instability and assigned ratings of 10 percent under Diagnostic Code 5257. The Veteran has not expressed disagreement with the rating, and the Board finds that all applicable diagnostic codes have been considered. Moreover, the evidence does not reflect left knee or right knee ankylosis, semilunar cartilage involvement, impairment of the tibia and fibula, or genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit more favorable determinations. REASONS FOR REMAND 5. A separate rating for left knee limitation of extension. 6. A separate rating for right knee limitation of extension. Based on the action in this decision, the RO should enact the grants of service connection for left and right knee limitation of extension and assign disability ratings and effective dates. 7. Entitlement to an initial rating in excess of 10 percent for residuals of status-post fracture of the fourth and fifth metatarsals, left foot. This issue was remanded by the Board in June 2018 but has not been adjudicated since that time and was not included in the July 2021 supplemental statement of the case. 8. Entitlement to a TDIU. In the July 2021 supplemental statement of the case, the RO erroneously found entitlement to a total disability based on individual unemployability (TDIU) was moot because the Veteran is rated at 100 percent disabling. The RO is reminded that a grant of a 100 percent rating does not always render the issue of a TDIU moot. VA must consider a claim for a TDIU, despite the existence of a schedular total rating, if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. The Board notes that the Veteran is rated as 100 percent disabling for his service-connected insomnia with dysthymic disorder and intermittent explosive disorder. On remand, the RO must consider whether the record indicates that any of the Veteran's other service-connected disabilities alone render him unemployable, especially without the consideration of his service-connected insomnia with dysthymic disorder and intermittent explosive disorder. Remand is also required because entitlement to a TDIU is inextricably intertwined with the pending rating assignment claims for bilateral knee extension and increased rating claim for residuals of status-post fracture of the fourth and fifth metatarsals, left foot. The matters are REMANDED for the following action: 1. The RO should issue the Veteran a rating decision that assigns disability ratings and effective dates for the grants of service connection for left and right knee limitation of extension. 2. The RO should issue the Veteran a SSOC as to the issues of entitlement to an initial rating in excess of 10 percent for residuals of status-post fracture of the fourth and fifth metatarsals, left foot. 3. The RO should readjudicate the issue of entitlement to a TDIU, properly. The RO is reminded that VA must consider a claim for a TDIU, despite the existence of a schedular total rating, if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. The RO must consider whether the Veteran's record indicates that any of his other service-connected disabilities alone render him unemployable, especially without the consideration of his 100 percent disabling service-connected insomnia with dysthymic disorder and intermittent explosive disorder. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a SSOC and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. J. LEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David S. Nelson 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.