Citation Nr: 21077339
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 16-61 906
DATE: December 29, 2021

ORDER

Entitlement to an increased rating for right knee disability based on limitation of motion, rated as 10 percent disabling prior to July 20, 2021, is denied. 

Entitlement to an increased rating for left knee disability based on limitation of motion, rated as 10 percent disabling prior to July 20, 2021, is denied.

Entitlement to an increased rating for right knee disability based on limitation of extension, rated as 20 percent disabling, effective July 20, 2021, is denied. 

Entitlement to an increased rating for left knee disability based on limitation of extension, rated as 20 percent disabling, effective July 20, 2021, is denied.

Entitlement to an increased rating of 20 percent, but no higher, for instability of the right knee is granted, effective August 15, 2018, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to an increased rating of 20 percent, but no higher, for instability of the left knee is granted, effective August 15, 2018, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective August 1, 2019, subject to the laws and regulations governing the payment of monetary benefits.

REMANDED

Entitlement to special monthly compensation (SMC) based on the need of aid and attendance of another person is remanded.

FINDINGS OF FACT

1. Effective prior to July 20, 2021, the Veteran's bilateral knee disability is manifested by painful motion.

2. Effective July 20, 2021, the Veteran's bilateral knee disability is manifested by flexion most severely limited to 90 degrees; and extension limited to 15 degrees.

3. Effective August 15, 2018, the Veteran's bilateral knee disability is manifested by moderate lateral instability.

4. Effective August 1, 2019, the Veteran's service-connected knee and lumbar spine disabilities precluded her from securing and following substantially gainful employment. 

CONCLUSIONS OF LAW

1. Effective prior to July 20, 2021, the criteria for a rating in excess of 10 percent for a right knee disability based on limitation of motion are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010.

2. Effective prior to July 20, 2021, the criteria for a rating in excess of 10 percent for a left knee disability based on limitation of motion are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010.

3. Effective July 20, 2021, the criteria for a rating in excess of 20 percent for the right knee disability based on limitation of extension are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261.

4. Effective July 20, 2021, the criteria for a rating in excess of 20 percent for the left knee disability based on limitation of extension are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261.

5. Effective August 15, 2018, the criteria for a rating of 20 percent, but no higher, for lateral instability of the right knee are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

6. Effective August 15, 2018, the criteria for a rating of 20 percent, but no higher, for lateral instability of the left knee are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

7. The criteria for entitlement to a TDIU are met, effective August 1, 2019. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from February 1987 to February 1991.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which, in pertinent part, granted service connection for right and left knee strain, assigning 10 percent ratings, effective February 23, 2011.

In January 2020, the Veteran testified at a video hearing before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the claims file.  

In May 2020, the Board, in pertinent part, remanded the issues of increased ratings for right and left knee strain. The Board remanded the case again in December 2020 finding, in pertinent part, that the issue of entitlement to a TDIU had been raised by the record as part of the increased rating claim on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). See, e.g., September 2019 VA medical statement; and February 25, 2020 letter documented in the VAMC treatment records. The Board also found that the evidence showed the issue of SMC based on need for aid and attendance had been raised by the record and remanded this matter, as well. See 38 C.F.R. § 3.350; Akles v. Derwinski, 1 Vet. App. 118 (1991) (the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim).

Pursuant to the remand, examinations of the knees were provided in March 2021 and July 2021. Thereafter, in a July 2021 rating decision, the AOJ granted increased ratings of 20 percent for limitation of extension of the left and right knees, effective July 20, 2021; and separate ratings of 10 percent for instability of the left and right knees, effective August 15, 2018. The Veteran has not indicated that the increased ratings satisfy her appeal; thus, the claim for entitlement to increased ratings for the bilateral knee disabilities is still before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The Veteran's representative submitted a brief in December 2021 arguing that the knee examinations provided were inadequate because the examination in March 2021 was conducted by a Family Practice Physician without any indicated competence or expertise relevant to the specialty of orthopedic medicine; and the July 2021 examination was conducted by a Nurse Practitioner without any indicated competence or expertise in the relevant specialty of orthopedic medicine. The representative further noted that once the Veteran raises a challenge to the competence of the medical examiner, the presumption has no further effect, and VA must satisfy its burden of persuasion as to the examiner's qualifications. The Board must then make factual findings regarding qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion. Francway v. Wilkie, 940 F.3d 1304 (2019). The Veteran's representative stated that the contract examiners were not shown to have any particular expertise, experience, training, or competence in commenting on orthopedic disorders. Again, it was noted that the first examiner's specialty was noted as Family Practice and the second examiner was noted as Nurse Practitioner. 

The Board recognizes the holdings of the United States Court of Appeals for Veterans Claims (Court) in Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), and Fears v. Wilkie, 31 Vet. App. 308, 317 (2019). However, beyond generally stating that the examiners are not qualified, the Veteran's representative has not requested any credentials related to the examiners or provided a reason why he believes this is so. By itself, the fact that the examiners are a Family Medicine Physician and Nurse Practitioner, rather than an Orthopedist, does not render the examiners unqualified or render the examinations inadequate. See e.g., Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (finding that VA satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant). Moreover, the Board did not indicate in its December 2020 remand that the VA examinations must be provided by an orthopedist or other type of physician specializing in orthopedic medicine. Finally, the examinations provided in March 2021 and July 2021 address all relevant evidence necessary to rate the present severity of the Veteran's bilateral knee disorder.

The directives of the Board's remand pertaining to the bilateral knee disabilities and TDIU having been substantially complied with, the case is now returned for appellate review. For the reasons below, the claim for entitlement to SMC based on the need of aid and attendance must be remanded again.

Increased Rating

1. Entitlement to an increased rating for right knee strain

2. Entitlement to an increased rating for left knee strain

The Veteran seeks higher ratings for her right and left knee disabilities. She testified at the January 2020 Board hearing that her right knee was worse because she compensated more on the right. See January 2020 Board hearing transcript, p. 5. She noted that she wore a brace for the knees and used a cane. Id. at 6. 

The Veteran's bilateral knee disabilities were originally characterized as knee strain and were rated under Diagnostic Codes 5299-5010 for limitation of motion due to arthritis. See August 2011 rating decision. As there is no diagnostic code specifically applicable to bilateral knee strain, these disabilities were rated by analogy under Diagnostic Code 5010, applicable to traumatic arthritis, which in turn in is evaluated as degenerative arthritis, based on limitation of motion of the specific joint involved. 38 C.F.R. § 4.20. 

As noted in the introduction, a subsequent July 2021 rating decision granted increased ratings of 20 percent for the bilateral knee disabilities (recharacterizing them as osteoarthritis with limitation of extension, previously rated as knee strain), effective July 20, 2021, under 38 C.F.R. § 4.71a, Diagnostic Codes 5002-5261; and also granted separate 10 percent ratings for instability, effective August 15, 2018, under 38 C.F.R. § 4.71a, Diagnostic Code 5257.

The assigned Diagnostic Code 5261, effective July 20, 2021, indicates that the bilateral knee disability is rated based on compensable limitation of extension.  38 C.F.R. § 4.71a.  A review of the evidence reflects that prior to July 20, 2021, the bilateral knee disability has been rated based on painful noncompensable limitation of motion. As discussed in more detail below, the medical evidence shows that the bilateral knee disability was not manifested by compensable limitation of motion (i.e., limitation of flexion or extension) at any time prior to the VA examination report in July 2021. Therefore, prior to July 20, 2021, the applicable Diagnostic Code is Diagnostic Code 5010, to show that the bilateral knee disabilities are being rated based on noncompensable limitation of motion that is painful. 38 C.F.R. § 4.71a. The bilateral knee disability is rated under Diagnostic Code 5261 as of July 20, 2021, because limitation of extension was noted to be 15 degrees, which warrants a 20 percent rating under Diagnostic Code 5261. However, the Veteran would not receive a separate rating for limitation of flexion, as discussed in more detail below, because her flexion was not limited to a compensable degree as of July 2021. 

Diagnostic Code 5010 provided that arthritis due to trauma, substantiated by x-ray findings is to be rated as degenerative arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. In the absence of any limitation of motion, a 10 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knees are considered major joints. 38 C.F.R. § 4.45 (f).

The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020).  Prior to February 7, 2021, the Board will consider the former version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The amendment to Diagnostic Code 5010, effective February 7, 2021, for post-traumatic arthritis was clarified that it can be rated as limitation of motion, dislocation, or instability. 38 C.F.R. § 4.71a, 85 Fed. Reg. 76453 (Nov. 30, 2020).  Under the amendment, Diagnostic Code 5002 also was renamed from rheumatoid arthritis to multi-joint arthritis to take into account all systemic arthritis (except post-traumatic and gout). Id. 

Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, a noncompensable rating is warranted for extension 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.  A 50 percent rating is warranted for extension limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

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 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.

The Board will evaluate the medical evidence of record to determine whether the Veteran is entitled to disability ratings higher than 10 percent for her bilateral knee disabilities prior to July 20, 2021; and higher than 20 percent, thereafter, under the relevant diagnostic codes. The Board also will address whether separate ratings for instability of the knees under Diagnostic Code 5257 are warranted prior to August 15, 2018, or higher than 10 percent, thereafter.

In evaluating the medical evidence of record, the Veteran's bilateral knee disabilities do not warrant ratings higher than 10 percent based on limitation of motion prior to July 20, 2021. 

A June 2011 VA examination report shows the Veteran reported knee pain that increased significantly to the point of being unable to walk or stand for long distances. It was noted that the knee pain was due to osteoarthritis joint pain. She reported that the pain was a level of 10+ out of 10. The pain was exacerbated by physical activity and walking/ standing. She indicated that she could stand on average for about 10 to 15 minutes and could walk about 100 to 200 feet. Range of motion studies showed 0 to 140 degrees of extension to flexion in both knees with no additional loss of motion after repetitive use. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Stability testing in the left and right knees was normal. X-rays of the right and left tibia and fibula were normal. The diagnosis was bilateral knee strain. 

A December 2011 VA treatment record notes the Veteran's complaint that her left knee felt like it wanted to "come out of socket."

An August 2014 VA examination report shows the Veteran had been diagnosed with osteoarthritis of the knee joints in January 2010. The Veteran reported that she had trouble walking during flare-ups and had functional loss in that she had limited flexion to 30 degrees. Range of motion studies showed flexion to 110 degrees with full extension with no additional loss after repetitive use testing. There was pain on active and passive range of motion and pain with weight-bearing. In addition to pain on movement there was also swelling and difficulty walking. Joint stability testing in the knees was normal. It was noted that diagnostic testing showed bone on bone medial bilateral knee degenerative changes.

In October 2016, a VA examination report shows that the Veteran's knees hurt and swelled, and she had difficulty walking. She stated that she could not walk or stand for very long. She did not report flare-ups and functional loss included difficulty ambulating. Range of motion studies showed 0 to 90 degrees of flexion with pain at the terminal flexion. There was pain with weight-bearing. Range of motion contributed to functional loss in that there was difficulty ambulating. Repetitive use testing did not result in any further limited motion. Joint stability testing was normal. There was a history of recurrent effusion, however. The Veteran regularly used a cane. X-ray examination showed advanced degenerative changes affecting the knees, progressed from previous study.

An August 2018 VA examination report shows the Veteran had a history of bilateral knee pain and severe osteoarthritis of the knees. The Veteran noted that the condition had gotten worse over the past 30 plus years with numerous doctor visits. She reported bone on bone knee joint, grinding, constant pain, and aching in the front and back of the knees. The pain would wake her up and keep her from sleeping. She also had weakness and sometimes falling and used a cane for support. She could not walk, stand, or sit for long periods of time. Flare-ups caused constant severe pain in the front and back of the legs and pain while sleeping, walking, sitting, climbing, and bending. Range of motion studies showed flexion from 0 to 95 degrees in the right knee and 0 to 100 degrees in the left knee. Range of motion contributed to functional loss by causing difficulty with prolonged walking and standing. There was pain with weight-bearing and severe tenderness to the medial and lateral joint space. There was no additional motion loss with repetitive use testing. Additional factors contributing to the knee disabilities included less movement than normal due to ankyloses, adhesions, etc., swelling, and instability of station. Later in the report, however, it was noted that the Veteran did not have ankylosis. It was noted that she had medial and lateral instability in the knees. There was objective evidence of pain on passive range of motion and on non-weight-bearing testing in both knees.

A November 2019 VA examination report shows the Veteran reported that her knees hurt when she stood or walked for too long. Flare-ups were mild to moderate depending on activity level. She noted that she could not do any running, squatting, kneeling, or climbing ladders or too many stairs because it hurt her knees. Range of motion studies showed 0 to 120 degrees of flexion. There was no additional loss of motion after repetitive use testing. There was pain on weight-bearing. The Veteran was in too much pain for joint stability testing. There was objective evidence of pain on passive range of motion and non-weight-bearing testing of the knees. 

As noted, the Veteran testified at the January 2020 Board hearing that her right knee was worse because she compensated more on the right. See January 2020 Board hearing transcript, p. 5. She noted that she wore a brace for the knees and used a cane. Id. at 6. 

A September 2020 VA treatment record shows the Veteran had increasing knee pain over the past several months causing her to stumble and nearly fall. She stated that she could barely walk due to increased knee pain and that she used a cane or walker.

In March 2021, a VA examination report shows range of motion studies from 0 to 105 degrees with pain on extension and flexion. Passive range of motion was the same as active range of motion. Additional motion loss was from 0 to 95 degrees after three repetitions. The Veteran reported that she no longer was able to use a cane due to instability with the knee and lumbar spine condition and used a wheeled walker for support and stability of the knee and lumbar spine. She described worse, constant, excruciating pain that was severe in both knees. She also had increased pain with prolonged standing, walking, and bending, and aching in the knees that interfered with sleep. She noted having fallen four to five times in the past three months due to instability, and swelling in the knees often, as well as extreme difficulty walking and standing. She noted that when working could not stand or sit for longer than five minutes a day without increased pain. She was unable to push or pull heavy weights and had difficulty grocery shopping due to the knees locking up.  

A July 2021 VA examination report shows the Veteran reported worsening bilateral knee pain frequency and severity, with frequent popping and recently causing her to fall. She had sharp pain in both knees, frequent popping and swelling during flare-ups. She had swelling in both knees with constant pain. Flare-ups occurred daily with walking or standing for prolonged periods and lasted throughout the day. She also had bilateral knee instability. Range of motion studies showed flexion to 95 degrees and extension to 15 degrees. Pain was noted on extension and flexion. There also was pain on weight-bearing. Passive range of motion was the same as active range of motion. There was no additional loss of motion after repetitive use testing. However, it was estimated that with repeated use over time flexion would be to 90 degrees (and extension remaining at 15 degrees).

Prior to July 20, 2021, based on the medical evidence of record, a rating higher than 10 percent is not warranted under Diagnostic Code 5003, as there is not x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. See Diagnostic Code 5003 for degenerative arthritis; Diagnostic Code 5010 (arthritis due to trauma, substantiated by x-ray findings, rate as degenerative arthritis). 

A compensable rating also is not warranted under Diagnostic Code 5260, as limitation of motion was not limited to at least 45 degrees of flexion. The medical evidence shows that at most, the Veteran's flexion was limited to 90 degrees, as noted in October 2016. Although the Veteran had reported on examination in August 2014 that she had limited flexion to 30 degrees, range of motion studies on that examination in August 2014 showed flexion to 110 degrees with full extension with no additional loss after repetitive use testing. The remaining medical evidence of record also is more consistent with flexion limited to 110 degrees, rather than so severe as 30 degrees. These findings were considered in the context of the August 2014, October 2016, August 2018, November 2019, March 2021, and July 2021 VA examination reports, which showed objective evidence of pain on active and passive range of motion and pain with weight-bearing. The examiners noted that pain was noted on examination in flexion and extension and caused functional loss in that she could not stand or walk for very long. The August 2018 VA examination report noted that the knee disabilities included less movement than normal due to ankyloses, adhesions, etc., swelling, and instability of station. Later in the report, however, it was noted that the Veteran did not have ankylosis. Moreover, none of the remaining medical findings demonstrate ankylosis in the knees. 

Notwithstanding the findings of significant pain that contributed to functional loss, the functional loss did not result in compensable limitation of motion of the knees or warrant ratings higher than 10 percent prior to July 20, 2021. The medical evidence effective July 20, 2021 also does not warrant a compensable rating for flexion, as flexion in the knees was limited to 95 degrees. The examinations of record dated from August 2014 to July 2021 complied with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016); and Sharp v. Shulkin, 29 Vet. App. 26 (2017) in determining the then-current severity of the Veteran's bilateral knee disability. In October 2016, the knees most severely were limited to 90 degrees of flexion; but this still does not warrant a compensable rating for limited flexion under Diagnostic Code 5260. 

As for limitation of extension, as noted, 20 percent ratings are assigned effective July 20, 2021, on the basis of the July 2021 VA examination showing extension limited to 15 degrees, which warrants a 20 percent rating under Diagnostic Code 5261. Separate evaluations may be assigned for both flexion and extension of the knee joint only where the evidence demonstrates that both limitations rise to a compensable degree (i.e., meet the criteria for a 10 percent rating or higher under both Diagnostic Codes 5260 and 5261). See VAOPGCPREC 9-2004. As limitation of both extension and flexion did not rise to a compensable degree for the knees prior to July 20, 2021, only one single rating assignment may be awarded for limitation of motion symptomatology. Thus, the highest supportable rating for limitation of motion of the knee applies prior to July 20, 2021. 

Effective July 20, 2021, however, the date of the VA examination showing limitation of extension to 15 degrees, separate 20 percent ratings under Diagnostic Code 5261 were assigned. Flexion was to 95 degrees on examination in July 2021. The VA examination report shows that passive range of motion was the same as active range of motion. There was evidence of pain on weight-bearing, and in active and passive motion. There was no additional loss of function or range of motion after three repetitions. Based on the July 2021 VA examination report, the Veteran's right and left knee disabilities warrant 20 percent ratings, but no higher, for limitation of extension; and do not warrant separate compensable ratings for limitation of flexion, effective July 20, 2021.

In addressing the new criteria for arthritis, effective February 7, 2021, the medical evidence shows that the Veteran's knee arthritis is degenerative (i.e., not posttraumatic). See, e.g., August 2018 VA examination report. Thus, there is no change to the ratings assigned under the new criteria. 85 Fed. Reg. 76453 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2021)).

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  

The medical evidence does not show any ankylosis of the knees. As previously discussed, the August 2018 VA examination report noted that the knee disabilities included less movement than normal due to ankyloses, adhesions, etc., swelling, and instability of station. Later in the report, however, it was noted that the Veteran did not have ankylosis. Moreover, none of the remaining medical findings demonstrate ankylosis in the knees. Thus, a rating under Diagnostic Code 5256 does not apply. 

As for Diagnostic Code 5257, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under Diagnostic Codes 5003-5010 and Diagnostic Code 5257 (or under Diagnostic Codes 5258 or 5259) without violating the prohibition of pyramiding of ratings. The presence of instability of the knees may be established by lay evidence alone. See English v. Wilkie, 30 Vet. App. 347, 352 (2018).

Effective August 15, 2018, the Veteran was assigned separate 10 percent ratings for instability of the knees under Diagnostic Code 5257. 

Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability.  A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability.  A 30 percent rating is warranted for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257. 

Prior to August 15, 2018, the medical evidence does not show any instability in the right and left knees. The June 2011 VA examination report shows that stability testing in the left and right knees was normal. The Veteran noted being unable to walk or stand for long distances due to pain but did not report any instability in the knees. A December 2011 VA treatment record notes the Veteran's complaint that her left knee felt like it wanted to "come out of socket." However, an August 2014 VA examination report shows that joint stability testing in the knees was normal. An October 2016 VA examination report also shows that joint stability testing was normal. 

The Board acknowledges that objective medical evidence is not necessarily required to establish lateral knee instability under Diagnostic Code 5257, pursuant to English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). However, other than noting that her left knee felt like it wanted to come out of the socket in December 2011, the Veteran does not have any complaints of recurrent subluxation or instability of the knees prior to August 15, 2018. She did not state that her knee actually came out of socket just that it felt like it might. Therefore, there is no evidence to support a separate rating under Diagnostic Code 5257 prior to August 15, 2018. 

Effective August 15, 2018, the Veteran was assigned separate 10 percent ratings for slight instability of the knees. Upon review, however, the evidence of record more closely approximates the criteria for moderate instability of the knees, effective August 15, 2018. 

The August 2018 VA examination report shows medial and lateral instability in the knees was at 1+. However, the Veteran stated that she must use a cane for support and could not walk or stand for long periods of time. The November 2019 VA examination report shows the Veteran's knees were too painful for joint stability testing. She testified at the January 2020 Board hearing that she wore a brace and used a cane for the knees. See January 2020 Board hearing transcript, p. 6. The Veteran also noted on examination in September 2020 that she had increasing knee pain over the past several months causing her to stumble and nearly fall. She also stated that she could barely walk due to increased knee pain and that she used a cane or walker. The findings of stumbling and falling seem to be related to her complaints of pain, rather than instability. Nonetheless, all doubt is resolved in the Veteran's favor that the instability in the knees also contributed to her falling. The March 2021 VA examination report shows that the Veteran reported that she no longer was able to use a cane due to instability with the knee and lumbar spine condition and used a wheeled walker for support and stability of the knee and lumbar spine. She described worse, constant, excruciating pain that was severe in both knees. She noted having fallen four to five times in the past three months due to instability, and swelling in the knees often, as well as extreme difficulty walking and standing. The July 2021 VA examination report continues to show bilateral knee instability. 

Based on these findings, the Board resolves all doubt in the Veteran's favor that she had moderate instability in the right and left knees, effective August 15, 2018. 

The next higher 30 percent rating is not warranted, as the evidence does not show severe recurrent subluxation or lateral instability. While the Veteran used assistive devices, the most significant impairment in the knees seems to be related to the pain in her knees, rather than instability. In fact, objective testing for instability of the knees was not performed since August 2018 due, in part, to pain in her knees. Thus, the evidence of record supports moderate, but not severe instability in the knees, effective August 15, 2018. 

With the change in regulations as outlined above effective from February 7, 2021, Diagnostic Code 5257 now contains two sections for rating other impairment of the knee.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  The first is for recurrent subluxation or instability. The revised criteria note that a 20 percent rating is provided for recurrent subluxation or instability with one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/ or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. The next higher 30 percent rating is warranted for recurrent subluxation or instability with unrepaired or failed repair of complete ligament tear causing peristent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 

The second is for patellar instability. The revised criteria note that a 20 percent rating is provided for patellar instability when it is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. The next higher 30 percent rating is warranted for patellar instability when it is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 

Regarding the version of Diagnostic Code 5257 in effect since February 7, 2021, a higher rating than 20 percent for recurrent subluxation or instability is not warranted because the evidence does not show unrepaired or failed repair of complete ligament tear, or a diagnosis of patellar instability of the patellofemoral complex.  

A separate rating under Diagnostic Code 5258 for dislocated semilunar cartilage is not warranted, as the medical evidence does not demonstrate any dislocated semilunar cartilage. Also to the extent that the currently assigned ratings contemplate instability in the right and left knees, effective August 15, 2018, and painful motion of the right and left knees due to arthritis, to assign a separate rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion would in this case be rating the same type of impairment under different diagnostic codes, which is impermissible under 38 C.F.R. § 4.14. Similarly, a separate rating under Diagnostic Code 5259 is not warranted as the Veteran already is assigned ratings for any resultant instability and painful motion in the right and left knees.

The medical evidence does not show impairment of the tibia and fibula warranting a rating under Diagnostic Code 5262. The medical evidence also does not show genu recurvatum under Diagnostic Code 5263. 

Thus, in reviewing the medical evidence of record, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for limitation of motion of the right and left knees prior to July 20, 2021; or higher than 20 percent for limitation of extension, thereafter. However, effective August 15, 2018, the medical evidence shows that higher separate ratings of 20 percent, but no higher, are warranted for moderate instability of the knees. The Board acknowledges the Veteran's previous lay reports of symptoms and that there was functional loss due to pain and instability. These statements have been considered in the ratings assigned. To the extent that any higher ratings are not assigned, 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. 

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) 

The Veteran seeks a TDIU. As noted in the prior Board remand, medical evidence in the file raises the issue of entitlement to a TDIU. See, e.g., September 2019 VA medical statement. The Veteran's representative testified at the Board hearing that they were not raising the issue of entitlement to individual unemployability at that time. See January 2020 Board hearing transcript, p. 7. However, a statement from the Veteran on a VA treatment record dated in February 2020 shows that the Veteran indicated that she was seeking a permanent and total disability rating pertaining, in part, to her bilateral knee disabilities. See February 25, 2020 letter documented in the VAMC treatment records. Thus, the issue of entitlement to a TDIU was raised by the record as part of the Veteran's increased rating claim for her bilateral knee disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009).  

The Veteran submitted a VA Form 21-8940 in December 2020 noting that she became too disabled to work on August 1, 2019 due to her service-connected knees, back, and cervical spine disability. (Of note, while she is service-connected for her knees and lumbar spine disabilities, she is not service-connected for a cervical spine disability). See, e.g., August 2021 rating decision.

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 phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components.  See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  The economic component refers to 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.  Id.  The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment.  Id.  Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity).  Id.

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training.  See Todd v. McDonald, 27 Vet. App. 79, 85 (2014).  It does not require a showing of 100 percent unemployability.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Veteran has the following disabilities that are service connected: (1) major depressive disorder (rated 70 percent, from November 2, 2017, and 100 percent, from June 7, 2021); (2) osteoarthritis of the left knee (rated 10 percent from February 23, 2011, and 20 percent, from July 20, 2021); (3) osteoarthritis of the right knee (rated 10 percent from February 23, 2011, and 20 percent, from July 20, 2021); (4) instability of the left knee (rated 20 percent from August 15, 2018); instability of the right knee (rated 20 percent from August 15, 2018); (5) degenerative disc disease of the lumbar spine (rated 10 percent from February 23, 2011, and 20 percent from July 20, 2021); (6) sciatic nerve pain of the right lower extremity (rated 10 percent from February 23, 2011, and 20 percent from July 20, 2021); (7) sciatic nerve pain of the left lower extremity (rated 10 percent from February 23, 2011, and 20 percent from July 20, 2021); (8) status post left forearm injury residual (scarring) (rated 0 percent from July 24, 1998, and 10 percent from March 31, 2005); (9) left hip strain (rated 10 percent from November 2, 2017); (10) bilateral tinnitus (rated 10 percent from November 2, 2017); (11) left forearm residual cortical injury limitation of flexion (painful motion of elbow) (rated 10 percent from March 20, 2021); (12) left forearm residual cortical injury (painful motion of forearm) (rated 10 percent from March 30, 2021); (13) left wrist residual cortical injury (rated 10 percent from March 30, 2021); (14) right hip strain (rated 20 percent from November 2, 2017, and 10 percent from July 20, 2021); (15) status post McVay repair, right inguinal hernia with scar (rated 0 percent from July 24, 1998); (16) right hip limitation of extension (rated 0 percent from November 2, 2017); (17) left hip limitation of extension (rated 0 percent from November 2, 2017); (18) left hip impairment (rated 0 percent from November 2, 2017); (19) right hip impairment (rated 0 percent from November 2, 2017); (20) bilateral hearing loss (rated 0 percent from November 2, 2017); (21) left forearm residual cortical injury limitation of extension (rated 0 percent from March 30, 2021); and (22) scars status post motor vehicle accident left forearm residual cortical injury (rated 0 percent from March 30, 2021).

Based on the forgoing, effective November 2, 2017, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  Accordingly, the Board may consider the claim for a TDIU on a schedular basis, effective November 2, 2017.  38 C.F.R. § 4.16(a). As the Veteran indicates that she became unemployable as of August 1, 2019 due to her service-connected disabilities, and she was reportedly gainfully employed prior to that date, she meets the schedular criteria for a TDIU for the relevant time frame. 

Of note, as the Veteran has a 100 percent rating for major depressive disorder, from June 7, 2021, she is receiving the highest possible schedular rating for this disability, and it cannot be considered in determining the Veteran's employability status, effective June 7, 2021. 

For the reasons that follow, the Board finds that a TDIU is warranted, effective August 1, 2019.

The Veteran has two years of college education, a work history as an administrative assistant, and no specialized skills or training. See, e.g., VA-Form 21-8940 dated December 2020. 

The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of her service-connected knee and lumbar spine disabilities in that she has severe pain and cannot stand, sit, or walk for a long period of time. A September 2019 letter was submitted by the Veteran's treating VA doctor for her knees, lumbar spine, and her hips. The examiner noted that for employment purposes the Veteran was considered totally disabled at that time because she could not tolerate prolonged sitting, walking, or standing. A November 2019 VA examination report notes that the Veteran's recurrent knee pain would impact her ability to engage in activities involving squatting, kneeling, or climbing ladders. The Veteran's former employer noted that the Veteran's position was terminated due to restructuring but that due to physical limitations she was unable to apply for other positions of a sedentary nature. 

The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of her service-connected knee and lumbar spine disabilities due to the severe pain associated with her impairment. The VA physician who wrote the letter in September 2019 noted that the Veteran reported that her pain was so severe that it impacted her ability to concentrate on mental tasks. 

Given the forgoing, the Veteran's service-connected knee and lumbar spine disabilities preclude her from the ability to secure and follow a substantially gainful occupation consistent with her education, skills, training, and work history. She has severe pain in the knees and back, which prevent her from sitting, standing, or walking for any prolonged period. Working in her field of administrative support would presumably require prolonged sitting. She also has significant pain associated with these disabilities which makes concentrating difficult. Accordingly, a TDIU is warranted, effective August 1, 2019. Consideration of a TDIU prior to August 1, 2019 does not apply, because, as noted, the Veteran stated that she was gainfully employed prior to that date.

REASONS FOR REMAND

1. Entitlement to SMC based on the need of aid and attendance is remanded.

The Board remanded the claim in December 2020 finding that the issue of entitlement to SMC based on the need of aid and attendance had been raised by the record. Specifically, a February 2020 statement from the Veteran's fiancé notes that he has to help her with activities of daily living due, in part, to her knee disabilities. 

The Board noted in the remand that all development of the SMC claim deemed necessary should be conducted, to include obtaining medical examinations or opinions. On remand, the AOJ opted not to conduct an examination or provide an opinion to determine whether the Veteran needed aid and attendance. However, a June 2021 VA psychiatric examination report shows that the Veteran had intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. 

The Veteran is service-connected for major depressive disorder, osteoarthritis of the left and right knees, instability of the left and right knees, degenerative disc disease of the lumbar spine, sciatic nerve pain of the right and left lower extremities, status post left forearm injury residual (scarring), left and right hip strain, left and right hip limitation of extension, left and right hip impairment, bilateral tinnitus, left forearm residual cortical injury limitation of flexion (painful motion of elbow), left forearm residual cortical injury (painful motion of forearm), left wrist residual cortical injury, status post McVay repair, right inguinal hernia with scar, bilateral hearing loss, left forearm residual cortical injury limitation of extension, and scars status post motor vehicle accident left forearm residual cortical injury.

The June 2021 VA examination shows that an aid and attendance examination is warranted, as an informed decision cannot be made based on the evidence of record.

The Board notes that the AOJ granted the Veteran SMC based on housebound status in a July 2021 rating decision, effective June 7, 2021. However, entitlement to SMC based on aid and attendance under 38 U.S.C. § 1114 (l), is a greater monetary benefit than SMC based on housebound status under 38 U.S.C. § 1114 (s). 

On remand, the Veteran should be provided with the requisite VA examination to determine whether she is in need of aid and attendance of another person due to her service-connected disabilities.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine whether the Veteran has the need for aid and attendance of another person due to her service-connected major depressive disorder, osteoarthritis of the left and right knees, instability of the left and right knees, degenerative disc disease of the lumbar spine, sciatic nerve pain of the right and left lower extremities, status post left forearm injury residual (scarring), left and right hip strain, left and right hip limitation of extension, left and right hip impairment, bilateral tinnitus, left forearm residual cortical injury limitation of flexion (painful motion of elbow), left forearm residual cortical injury (painful motion of forearm), left wrist residual cortical injury, status post McVay repair, right inguinal hernia with scar, bilateral hearing loss, left forearm residual cortical injury limitation of extension, and scars status post motor vehicle accident left forearm residual cortical injury.

A complete rationale should be provided for all expressed opinions. 

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sarah B. Richmond, 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.