Citation Nr: 21077158 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 07-23 956 DATE: December 28, 2021 ORDER Entitlement to an evaluation of 30 percent, but no higher, for right knee instability, for the period from January 31, 2007 to May 10, 2012, for is granted. Entitlement to an evaluation of 30 percent, but no higher, for left knee instability, for the period from January 31, 2007 to May 10, 2012, for is granted. Entitlement to an evaluation in excess of 10 percent for chondromalacia of the right knee, for the period from January 31, 2007 to May 10, 2012, is denied. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome of the left knee, for the period from January 31, 2007 to May 10, 2012, is denied. Entitlement to a total disability rating for individual unemployability (TDIU), for the period from January 31, 2007 to May 10, 2012, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's instability of the bilateral knees more approximated severe level of symptoms for the period from January 31, 2007 to May 10, 2012. 2. The preponderance of the evidence is against finding that the Veteran had right or left knee disability that resulted in functional loss equivalent to knee flexions limited to 30 degrees or less for the period from January 31, 2007 to May 20, 2012. 3. There is an approximate balance of positive and negative evidence as to whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation for the period from January 31, 2007 to May 20, 2012. CONCLUSIONS OF LAW 1. For the period from January 31, 2007 to May 10, 2012, the criteria for an evaluation of 30 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5257 (2020). 2. For the period from January 31, 2007 to May 10, 2012, the criteria for an evaluation of 30 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5257 (2020). 3. For the period from January 31, 2007 to May 10, 2012, the criteria for an evaluation in excess of 10 percent for chondromalacia of the right knee have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5260 (2020). 4. For the period from January 31, 2007 to May 10, 2012, the criteria for an evaluation in excess of 10 percent for patellofemoral syndrome of the left knee for have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5260 (2020). 5. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to February 1977. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, the Board denied the Veteran's increased rating claims for bilateral knee disability and remanded the issues of TDIU for further development. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2011 Joint Motion for Partial Remand (JMPR) order, the Court vacated the October 2010 Board decision and remanded the issue of increased rating claims for bilateral knees. The Court found that the Board prematurely declined extraschedular evaluations of the knee disabilities when the record was insufficiently incomplete due to the pending TDIU claim on remand. Unfortunately, the Veteran died in May 2012, and the Board dismissed the case in June 2012 due to the Veteran's death. Since then, the appellant has been substituted for the Veteran's pending appeals for increased rating claims for bilateral knees and the TDIU claim. The Board remanded the matters in June 2019 for additional development. In January 2019, the Board denied the issues on appeal, and the appellant appealed this decision to the Court. In a November 2019 Joint Motion for Remand order, the Court vacated the January 2019 Board decision and remanded the matters. The Court found the Board erred by relying on a previous VA examination that did not satisfy requirements under Correia and Sharp. After the return of the case to the Board, the Board remanded the case for further development in April 2020. In September 2020, the Board denied the increased ratings claims for chondromalacia of the right and patellofemoral syndrome of the left knee, but granted additional ratings for right and left knee instability at 10 percent disabling from January 31, 2007, respectively. See also July 2021 Rating Decision (the RO implemented the September 2020 Board decision). The appellant appealed this decision to the Court. In an August 2021 JMPR order, the Court vacated the September 2020 Board decision and remanded the matter for readjudication. The Court found that the Board did not provide sufficient reasons and bases for findings and conclusions in denying the appellant's claims for higher ratings for bilateral knee disability and TDIU. In particular, the Court pointed out that the Board's September 2020 decision lacked sufficient analysis on the evaluations of the Veteran's bilateral knee instability. Now the matters are returned to the Board. Increased Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2020). The intent of Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Also, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). Otherwise, it will assign the lower rating. Id. 1. Right and left knee instability The Board will examine whether the Veteran was entitled to an evaluation higher than 10 percent for right and left knee instability, for the period from January 31, 2007 to May 10, 2012. Prior to February 7, 2021, under Diagnostic Code 5257, a 10 percent evaluation was warranted for slight symptoms of lateral knee instability; a 20 percent evaluation was warranted for moderate symptoms; and a 30 percent evaluation was warranted for severe symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). The Board notes that the terms "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element 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 (2020). The Board notes that the Veteran's use of a cane for stability for the entire period on appeal is shown in the evidence of record. See e.g., February 2007 Joints Examination Report (the Veteran has been using cane for two to three years, more often in the last year or so); September 2007 Primary Care Note (the Veteran stated that he could not stand for more than 2 minutes even with the cane); February 2012 Primary Care Note. The Board also notes that the record shows the Veteran's history of falls and intervention plan of using a cane to prevent him from falling. See February 2012 Primary Care Note; see also July 2007 SSA Report (the Veteran stated that he is afraid of falling in the tub due to weakness in the legs and has fallen in the past). The Board acknowledges that the Veteran suffered from a non-service-connected stroke in 2001, which affected his mobility. However, the Board notes that there has been separate documentation since the stroke on the Veteran's need to use a cane specifically for unstable knees after an episode where his knee "gave out" on him. See May 2002 Nursing Note (the Veteran reported that he could not use his knee without using a cane since the knee gave out two days prior). On December 2010 VA examination, the Veteran reported that he experiences bilateral knee instability about twice a month. However, the examiner observed that no knee instability was elicitable during the in-person examination. Based on above, the Board resolves reasonable doubt in the Veteran's favor and finds that the Veteran's instability of the bilateral knees more approximated severe level of symptoms during the period from January 31, 2007 to May 10, 2012. Consequently, resolving reasonable doubt in the Veteran's favor, the appellant's entitlement to an evaluation of 30 percent for right knee instability and 30 percent for left knee instability for the period from January 31, 2007 to May 10, 2012, for substitution purposes is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5257 (2020). A higher evaluation than 30 percent is not warranted here as the 30 percent is the maximum disability rating available under Diagnostic Code 5257. 2. Chondromalacia of the right knee & patellofemoral syndrome of the left knee As the Veteran's symptoms of the instability of the knees are evaluated under a separate Diagnostic Code, the Veteran's service-connected chondromalacia of the right knee and patellofemoral syndrome of the left knee should be evaluated based on limitation of motion of the knee under Diagnostic Code 5260. Under Diagnostic Code 5260, in pertinent part, a 20 percent evaluation is warranted for knee flexion limited to 30 degrees; and a maximum 30 percent evaluation is warranted for knee flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2020). On February 2007 VA examination, the right knee flexion was to 115 degrees with increased pain on motion. The left knee range of motion was from 0 degrees to 115 degrees on repetitive motion testing without any pain noted. The examiner noted that there was no additional limitation of motion. There was no swelling or ligamentous laxity of the knees. The grind test was positive for the right knee and negative for the left knee. The Veteran had patellofemoral tenderness. The Veteran reported flare-ups of knee pain with prolonged standing. In this regard, the examiner provided that additional limitation of function during a flare-up cannot be determined without resorting to mere speculation, but did not provide any additional explanation. On December 2010 VA examination, the Veteran reported constant pain and fatigue in the right knee. The active right knee flexion after 3 repetitions was to 90 degrees and the extension was to 2 degrees. The active flexion of the left knee after 3 repetitions was to 116 degrees and extension was to 0 degrees. The examiner noted that the range of motion was limited by pain. There was no loss of function reported with repetitive-use testing. Grind test was positive on the right knee. The examiner provided that loss of function due to flare-ups cannot be determined without resorting to mere speculation. In a May 2020 medical opinion, a VA examiner concluded that the severity of the Veteran's bilateral knee disability was mild during the period from January 31, 2007 to May 10, 2012. The examiner pointed out that May 2007 and November 2010 treatment notes indicated a mild knee disability overall. The examiner also provided that he has no basis to offer additional losses of function or motion during flare-ups or repetitive-use after a review of all pertinent records and using his medical knowledge and expertise. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran had right or left knee disability for the period from January 31, 2007 to May 20, 2012 that resulted in functional loss equivalent to knee flexions limited to 30 degrees or less. Consequently, the appellant's entitlement to an evaluation in excess of 10 percent for chondromalacia of the right knee and an evaluation in excess of 10 percent for patellofemoral syndrome of the left knee, for the period from January 31, 2007 to May 20, 2012, for substitution purposes is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5260 (2020). TDIU Now the Board will examine whether the Veteran was warranted TDIU for the period from January 31, 2007 to May 20, 2012. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a) (2020). To qualify for a schedular TDIU, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a)(2) (2020). Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341 (2020). The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Substantially gainful employment is an employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Also, marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16(a) (2020). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. For the period from January 31, 2007 to May 20, 2012, the Veteran was service-connected the following: right knee instability disabling at 30 percent from January 31, 2007; left knee instability disabling at 30 percent disabling from January 31, 2007; chondromalacia of the right knee disabling at 10 percent from February 4, 1977; patellofemoral syndrome of the left knee disabling at 10 percent from December 16, 1996; and limitation of right knee extension disabling at 0 percent from June 10, 2011. The Board notes that these service-connected disabilities should be considered as one disability under 38 C.F.R. § 4.16(a)(2) as they are affecting single body system, i.e., orthopedic. Thus, the Board finds that the Veteran meets the schedular criteria for TDIU with one disability ratable at 60 percent. The record shows that the Veteran had a high school level education. The Board notes that the Veteran's work history demonstrates that he had physically demanding jobs since separation from service. The Veteran job history includes facility maintenance supervisor, painter, air craft parts cleaner, aircraft mechanic, mover, truck driver, van driver, custodian for school boards, and longshoreman. The Veteran reported that he has last worked as a mariner, but he had to quit his job in 2007 due to pain in bilateral knees and legs. See February 2007 Joints Examination Report; see also December 2010 Joint Examination Report (the Veteran stated that he has not worked in the last two and a half years due to his bilateral knees and other medical problems). As to worsening of his bilateral knee pains prior to the Veteran quitting his job, the Veteran reported that he could not tolerate the stairs anymore, and he is in pain for the rest of the night after his work every day. See December 1996 Statement in Support of Claim. The December 2010 VA examiner provided that the Veteran was employable in light duty occupations consistent with his education and experience, and that the service connected left and right knee disabilities caused mild functional limitation. The record show that the Veteran had non-service-connected residuals of a stroke and high blood pressure, which also contributed to his employability at least to a certain degree. However, as noted above, the Veteran continued to work approximately until 2006 despite experiencing the stroke in 2001. Thus, the Board concludes that the Veteran's non-service-connected stroke could not have been the sole reason for his unemployability, when considering the Veteran's claim of worsening of his bilateral knee disability filed in January 2007. Based on above, the Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation for the period from January 31, 2007 to May 20, 2012. Consequently, resolving reasonable doubt in the Veteran's favor, the appellant's entitlement to TDIU for the period from January 31, 2007 to May 20, 2012 for substitution purposes is warranted. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.