Citation Nr: 21077079 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 12-15 219 DATE: December 28, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to July 8, 2016, in excess of 30 percent from July 8, 2016, to December 30, 2020, and in excess of 50 percent beginning December 31, 2020, for a left knee disability manifesting in limitation of extension is denied. Entitlement to an initial evaluation in excess of 10 percent for a left knee disability manifesting in limitation of flexion is denied. Entitlement to an initial evaluation in excess of 40 percent for a left knee disability manifesting in impairment of the tibia is denied. Entitlement to an evaluation of 10 percent, and no greater, from November 6, 2009, through January 7, 2014, for a left knee disability manifesting in instability is granted. Entitlement to an evaluation in excess of 10 percent beginning July 8, 2016, for a left knee disability manifesting in instability is denied. Entitlement to an evaluation of 10 percent, and no greater, from August 11, 2010, through January 7, 2014, for a left knee disability manifesting in swelling is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Prior to January 8, 2016, the Veteran's left knee disability manifested in constant resting pain, pain on movement, slight limitation of flexion, and decreased speed of joint motion. 2. Beginning November 6, 2009, the Veteran's left knee disability also manifested in feelings of instability and giving way. 3. Beginning August 11, 2010, the Veteran's left knee disability also manifested in episodes of significant swelling, after a May 2010 partial meniscectomy. 4. Beginning January 8, 2016, the combined rating for the disabilities affecting the Veteran's left lower extremity is 60 percent. 5. Throughout the period on appeal, the Veteran's service-connected disabilities prevented him from securing and following substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent prior to July 8, 2016, in excess of 30 percent from July 8, 2016, to December 30, 2020, and in excess of 50 percent beginning December 31, 2020, for a left knee disability manifesting in limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.68, 4.71a, Diagnostic Code 5261. 2. The criteria for an initial evaluation in excess of 10 percent for a left knee disability manifesting in limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.68, 4.71a, Diagnostic Code 5260. 3. The criteria for an initial evaluation in excess of 40 percent for a left knee disability manifesting in impairment of the tibia have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.68, 4.71a, Diagnostic Code 5262. 4. The criteria for an evaluation of 10 percent, and no greater, from November 6, 2009, through January 7, 2014, for a left knee disability manifesting in instability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.68, 4.71a, Diagnostic Code 5257. 5. The criteria for an evaluation in excess of 10 percent beginning July 8, 2016, for a left knee disability manifesting in instability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.68, 4.71a, Diagnostic Code 5257. 6. The criteria for an evaluation of 10 percent, and no greater, from August 11, 2010, through January 7, 2014, for a left knee disability manifesting in swelling have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.68, 4.71a, Diagnostic Code 5259. 7. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from July 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2016. This case was previously before the Board in April 2016, 2017, 2020, and June 2021, when it was remanded for development. The case has been returned to the Board for further appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. §4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of sections 4.40 and 4.45 pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups which resulted in functional loss. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. at 207-08; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell, 25 Vet. App. at 37-38. Finally, painful motion is an important factor of disability with any form of arthritis. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability; actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. 1. Entitlement to an initial evaluation in excess of 10 percent prior to July 8, 2016, in excess of 30 percent from July 8, 2016, to December 30, 2020, and in excess of 50 percent beginning December 31, 2020, for a left knee disability manifesting in limitation of extension 2. Entitlement to an initial evaluation in excess of 10 percent for a left knee disability manifesting in limitation of flexion 3. Entitlement to an initial evaluation in excess of 10 percent for a left knee disability manifesting in instability 4. Entitlement to an initial evaluation in excess of 40 percent for a left knee disability manifesting in impairment of the tibia and fibula For his left knee disability, the Veteran is currently in receipt of several distinct ratings under separate diagnostic codes (DCs). He is assigned a 40 percent evaluation under DC 5262 for impairment of the left tibia with patellar tendinitis and a 10 percent evaluation under DC 5260 for limitation of flexion of the left knee, both effective March 1, 2004. He is assigned a 10 percent evaluation under DC 5257 for instability of the left knee, effective July 8, 2016. The Veteran also currently has a 50 percent evaluation under DC 5261 for limitation of extension of the left knee, effective December 31, 2020; prior to this, from July 8, 2016, to December 30, 2020, this aspect of the disability was rated as 30 percent disabling, and prior to July 8, 2016, it was rated as 10 percent disabling. As of February 7, 2021, changes have been implemented to the musculoskeletal rating criteria. The Board will apply the new criteria for the period beginning February 7, 2021, if the new criteria are more beneficial to the Veteran than the prior version of the regulation. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (regulations may not have retroactive effect unless their language specifies so). Under DC 5257, a 10 percent evaluation is assigned for slight recurrent subluxation or lateral instability; a 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability; and a 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability. The words "mild," "moderate," and "severe," as used in here, are not defined in the rating schedule. The use of these terms by VA examiners and others, although an element of evidence to be considered, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. 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. There are significant changes to DC 5257 effective February 7, 2021. The new criteria specify that the code governs recurrent subluxation or instability (due to a knee sprain or ligament tear) and patellar instability. The criteria concerning recurrent subluxation or instability provide a 10 percent evaluation where there is a sprain, incomplete ligament tear, or complete ligament tear (either repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (such as cane, crutches, or walker) or bracing for ambulation. A 20 percent rating is warranted in two situations: where there is a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or where there is unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent evaluation is assigned where there is unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. For patellar instability, a 10 percent evaluation is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability, without a prescription for an assistive device or bracing for ambulation. A 20 percent rating is assigned for a patellar condition after surgical repair with a prescription for either a brace, cane, or walker, and a 30 percent rating is assigned for the same with a prescription for both a brace and a cane or walker. Under DC 5260, a noncompensable rating is warranted where flexion of the knee is limited to 60 degrees, and a 10 percent evaluation is warranted when flexion is limited to 45 degrees. A 20 percent disability rating is warranted when flexion is limited to 30 degrees, and a 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a 10 percent disability rating is warranted when extension of the knee is limited to 10 degrees. A 20 percent disability rating is warranted when extension is limited to 15 degrees, and a 30 percent rating is warranted when extension limited to 20 degrees. A 40 percent disability rating is warranted when extension is limited to 30 degrees, and a 50 percent disability rating is warranted when extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Changes were not made to the rating criteria for DCs 5260 or 5261 in the February 2021 update. Under DC 5262, impairment resulting in nonunion of the tibia and fibula, with loose motion, requiring a knee brace is assigned a 40 percent evaluation. There were changes made to the criteria for this DC effective February 7, 2021; however, the changes were made to the criteria for evaluations less than 40 percent, and thus are not applicable in this case. Lastly, the Board notes section 4.68 of the regulations, which provides that the combined rating for all disabilities of an extremity shall not exceed the rating for the amputation of the extremity at the elective level. 38 C.F.R. § 4.68. In this case, this 'amputation rule' prohibits the combined rating of the left knee disabilities exceeding 60 percent. See 38 C.F.R. § 4.71a, DC 5164. The combination of the current evaluations implicates the amputation rule as of January 8, 2014, when the combined rating reached 60 percent. Therefore, an increased rating is not permitted beginning on that date, and the Board will only consider increased evaluations for the period prior to January 8, 2014. The Veteran's VA treatment records reflect complaints of knee pain throughout the period on appeal; other complaints are noted below. The Veteran described the knee pain as a constant, throbbing, "deep" pain and regularly reported that it worsened in cold weather. The Board notes there are very limited private treatment records in the claims file, despite reports from the Veteran that he sought treatment for his left knee disability from private providers, particularly leading up to and following his 2009 meniscus surgery. VA attempted to obtain these and other private treatment records, but the Veteran did not complete an authorization for VA to do so. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not a one-way street). Therefore, the Board will only be able to consider the private treatment records that are present in the record. In March 2006, the Veteran attended a VA examination, at which he denied flare-ups of knee pain. He reported occasional swelling and popping. The examiner noted no swelling or effusion at the examination, and noted the ligaments were stable. The range of motion was 130 degrees in flexion to 0 degrees in extension, with no change after repetitive motion. In October 2008, the Veteran sought treatment for chronic left knee pain. As there were no significant clinical findings, such as swelling or limitation of motion, an x ray was taken, revealing a bony fragment suggestive of an old fracture and only mild loss of height in the joint space. There was no radiographic evidence of joint effusion, acute fractures, or dislocations. In November 2009, the Veteran attended another VA examination, at which he reported increased left knee pain with cold weather, missing a step while walking, and twisting. The examiner noted the Veteran walked slowly and used a cane. The Veteran reported wearing a knee brace at all times and using a cane while walking to prevent falls when the left knee gives out or his back pain radiates unexpectedly. The Veteran endorsed a feeling of giving way in the knee, pain, stiffness, weakness, decreased speed of joint motion, tenderness of the kneecap and tendon area, and moderate flare-ups approximately once a week lasting a few hours. He reported being unable to stand for more than a few minutes and being able to walk approximately a quarter of a mile. The examiner noted tenderness, pain at rest, weakness, and guarding of movement in the left knee. The active range of motion was measured to be 133 degrees in flexion to 3 degrees in extension; the passive range of motion was 135 degrees in flexion to 0 degrees in extension. In May 2010, the Veteran underwent arthroscopy of the left knee for a partial medial meniscectomy and removal of loose bodies at a non-VA hospital. Prior to the procedure, he reported progressively more frequent episodes of instability and feeling like his left knee would give way, as well as minimal swelling. The surgeon noted no joint instability and minimal effusion upon examination. In August 2010, the Veteran complained of swelling and pain in his left knee to his VA primary care physician. In January 2011, the Veteran reported having had his left knee aspirated to reduce swelling and relieve pain. In August 2011, the Veteran complained of increased pain and swelling in his left knee, and in September 2011, his left knee was aspirated again to reduce the swelling. In April 2012, the Veteran reported worsening of his left knee symptoms, and complained of an intermittent feeling of instability. After careful review of the evidence of record, the Board finds that additional evaluations are warranted for portions of the period prior to January 8, 2014. Again, no increased evaluations are permitted in the period beginning January 8, 2014, to avoid running afoul of the amputation rule. See 38 C.F.R. § 4.68. First, the Board notes that, prior to January 8, 2014, the Veteran's combined rating for the left knee disability was 50 percent, with a 40 percent evaluation under DC 5262 for impairment of the tibia and a 10 percent evaluation under DC 5260 for limitation of flexion. Constant use a of knee brace, resting pain, and pain on motion are already compensated for under these evaluations. An increase under DC 5262 is not available, as this is the maximum available rating for this diagnostic code. An increase is not warranted under DC 5260, as the functional impairment described during this period including increased pain with cold weather, a feeling of giving way, and decreased speed of joint motion does not approximate a limitation of flexion to 30 degrees, which is the criterion for the next higher evaluation under this diagnostic code. The Board finds that the feeling of instability and the swelling described during this period merit compensation. The Veteran first began reporting feelings of instability or giving way during the November 2009 VA examination, which took place on November 6, 2009. The Veteran did not describe how long he had been experiencing this symptom, so the date of the examination is the earliest date on which it is factually ascertainable that the instability manifested. As no clinical finding of ligament instability was made during this period, the Board finds that the instability is slight and no greater than a 10 percent evaluation is warranted for the reports of instability. Therefore, the Board finds a 10 percent evaluation is warranted from November 6, 2009, through January 7, 2014. As for the swelling, the Board finds that a 10 percent evaluation under DC 5259 is appropriate. This diagnostic code addresses symptomatic removal of semilunar cartilage; the Board notes the May 2010 arthroscopic surgery was a partial meniscectomy. The Veteran reported occasional episodes of swelling during the period prior to January 8, 2014, as early as the March 2006 VA examination. However, the swelling he reported at the pre-surgical examination he described as minimal, and the effusion noted on the examination was noted to be minimal. It was not until August 2010, after the surgery, that the reports of swelling began to be regular and symptomatic, requiring aspiration on at least two occasions. Therefore, the Board finds a 10 percent evaluation under DC 5259 is merited for the swelling, beginning on the date of the post-surgical report, August 11, 2010. This is the maximum rating allowed under this diagnostic code; the Board considered application of DC 5258, which provides for a 20 percent evaluation where the semilunar cartilage is dislocated and manifests in frequent episodes of locking, pain, and effusion. However, the Veteran did not report any episodes of locking or dislocation, and dislocation was not noted on the October 2008 x-ray. Further, the Board notes that assignment of a 20 percent evaluation, in conjunction with the 10 percent rating assigned above for instability, would violate the amputation rule, as it would increase the Veteran's combined rating for the left knee disability above 60 percent. In conclusion, the Board finds that no increases are warranted for the evaluations under DCs 5260 and 5262, but that assignment of separate 10 percent evaluations under DC 5257 from November 6, 2009, through January 7, 2014, and under DC 5259 from August 11, 2010, through January 7, 2014, is appropriate. No increases are allowable for the period beginning January 8, 2014, due to the amputation rule. TDIU VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). 5. Entitlement to a TDIU The Court has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Therefore, the Board took jurisdiction over the Veteran's TDIU claim as part of his appeal for increased evaluations for the lumbar spine and left knee disabilities, the appeal period for which begins on March 1, 2004. In October 2016, the Veteran submitted a formal application for TDIU, on which he reported last working in August 2000, as a self-employed welder. On the same application form, he described leaving his welding job due to back pain in 1992 and beginning to work part-time for himself. The Veteran reported working part-time for himself until 2004, when the pain became so bad that he stopped working altogether. The Board notes a June 2005 VA treatment note, in which the Veteran reported not working for the previous year and a half. Although the record does not reflect the exact date on which the Veteran stopped working, the Board finds that the evidence indicates the Veteran was not working at any point during the appeal period. On the Veteran's TDIU application, he also reported completing four years of high school, and having two years of electrician and welding training completed in 1974. Regarding the Veteran's lumbar spine disability, the evidence of record throughout the appeal period reflects that the disability affects his ability to stand for long periods of time, as well as making it difficult to get up from a chair or down on the ground. He wears a back brace at all times and uses a cane to walk, and is prone to falls. During the early part of the appeal period, the Veteran was able to drive, although he reported it caused him pain and he need to stop approximately every 60 miles to stretch; by the time of the April 2016 Board hearing, the Veteran was no longer able to drive himself due to the pain it caused him. At the hearing, the Veteran also described seeking work when he was working part-time for himself and being turned down due to the medications he took for pain. The Veteran also reported that the pain from his back and knee disabilities increases if he stays in any one position too long either standing, sitting, or lying down and he has to move in order to stretch. The Board finds that a TDIU is warranted in this case. The Veteran's lumbar spine and left knee disabilities inhibit his ability to work as a welder or electrician, which is the only vocational training he possesses. They also prohibit physical labor of any sort, such as general manual labor or retail positions requiring standing on a sales floor or behind a register for long periods of time. The Veteran does appear to have some experience in managing self-employment, in which he likely gained office or clerical skills that he might be able to put to use in a more sedentary setting, such as administrative work in an office or managing a store. However, the physical limitations noted above include difficulty sitting in one position for an extended period of time, which would also preclude such sedentary work. Therefore, as the Veteran's service-connected disabilities prevent him from securing and following substantially gainful occupation, the Board finds a TDIU is warranted in this case. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.