Citation Nr: 21005951 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-50 651 DATE: February 3, 2021 ORDER The December 12, 2019 Board decision that denied a rating in excess of 30 percent for left knee strain with degenerative joint disease is vacated. Entitlement to a rating in excess of 30 percent for left knee strain with degenerative joint disease is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. On December 12, 2019, the Board issued a decision that denied a rating in excess of 30 percent for degenerative joint disease of the left knee. 2. The December 12, 2019 Board decision was promulgated after the submission of additional evidence in support of the claim but before consideration and response by the Board; due process was not accorded to the Veteran in the December 12, 2019 decision. 3. During the appeal period, left knee strain with degenerative joint disease was manifested with full extension, flexion limited to 15 degrees at worst; without recurrent subluxation or lateral instability; and without dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion; or ankylosis. CONCLUSIONS OF LAW 1. Vacatur of the Board's December 12, 2019 decision that denied an increased rating for left knee degenerative joint disease is warranted. 38 U.S.C. §§ 7103 (c), 7104(a); 38 C.F.R. § 20.1000. 2. The criteria for entitlement to an increased rating in excess of 30 percent for left knee strain with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5256 – 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Navy from October 1983 to December 1989. In December 2019, the Board issued a rating decision that denied an increased rating for a left knee disability. In February 2020, the Veteran’s representative submitted a motion for reconsideration with respect to the claims for an increased rating for a left knee disability and entitlement to a TDIU. The request for a TDIU has been added to this appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Vacatur Order The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. §§ 7103 (c), 7104(a); 38 C.F.R. § 20.1000. A December 12, 2019 Board decision denied a rating in excess 30 percent for left knee degenerative joint disease. In February 2020, the Board received a motion for reconsideration from the Veteran’s representative. The Veteran’s representative stated that the Board did not address written argument in support of the claims. The argument stated that the Veteran’s representative submitted a request to wait 90 days in September 2019. Within 90 days of the extension request, in December 2019, the Veteran submitted a VA Form 21-8940 and opinion in support of the claims. The argument stated that the Board did not consider the opinion and did not consider the claim for TDIU. The Veteran’s representative submitted additional evidence that was received within 90 days of the September 2019 extension request. As the evidence was not considered in the December 2019 decision, it is found that due process was not accorded to the Veteran in the December 12, 2019 decision. See 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000 (a). Therefore, the December 12, 2019 Board decision is vacated. Disability Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. 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. Painful motion is entitled to at least the minimum compensable rating. See Burton v. Shinseki, 25 Vet. App. 1 (2011). This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The United States Court of Appeals for Veterans' Claims also has held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,or] endurance." Id., quoting 38 C.F.R. § 4.40. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Court has held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Increased rating for left knee degenerative joint disease An April 2016 rating decision granted service connection for left knee degenerative joint disease. A 30 percent rating was assigned, pursuant to DC 5260, for flexion of the knee limited to 15 degrees or less. The Veteran has appealed the initial rating assigned for his left knee. In written argument dated in December 2019, the Veteran’s representative stated that the Veteran reported a history of flare-ups and recurrent subluxation and dislocation of his left knee. His representative contends that a higher rating is warranted on the basis of functional limitation and recurrent subluxation of the knee. An August 2019 memorandum shows that the Veteran was unavailable for an examination of his left knee. As the Veteran was unable to report for an examination, the claim will be decided based on the evidence of record. 38 C.F.R. § 3.655. The Veteran had a VA examination in March 2014. Diagnoses included left knee strain and DJD. Range of motion testing showed flexion to 110 degrees with painful motion throughout and extension to 0 degrees. There was no additional limitation of motion with repetitive use testing. The functional impairment of the left knee included less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The knee was tender to palpation. Joint stability testing of the left knee showed normal anterior stability, posterior instability, and medial-lateral instability. There was no evidence or history or recurrent subluxation or dislocation of the left knee. There was no history of meniscus conditions of the left knee. A VA treatment record dated in January 2015 reflects that the Veteran had steroid injection of his left knee. A June 2015 MRI report for the left knee indicated that there was no evidence of internal derangement. VA treatment records dated in August 2015 noted continued knee pain. VA treatment records dated in April 2017 noted bilateral knee pain. The records did not include range of motion tests. The Board finds that a higher rating for limitation of flexion is not warranted. Although the Veteran had flexion of his knee to 110 degrees, which would usually warrant a non-compensable rating, a 30 percent rating was assigned because of functional limitation of his left knee. The current rating for limitation of flexion is based on limitation of motion with functional loss of the knee that approximates limitation of motion to 15 degrees. DC 5260 provides a maximum 30 percent rating for limitation of flexion. The Board finds that a separate rating for limitation of extension is not warranted. Although the Veteran’s representative asserts that there is sufficient evidence to warrant a higher rating based on flare-ups, the evidence does not show that the flare-ups of the left knee limit his extension to 10 degrees. His most recent VA examination showed full extension of his left knee. The Board finds that a separate rating for recurrent subluxation or lateral instability is not warranted. While the Veteran’s representative stated that the Veteran reported a history of recurrent subluxation and dislocation of his left knee, the Board does not find these statements to be credible, as this is inconsistent with the medical evidence of record. The March 2014 examination and VA treatment records do not reflect any subjective complaints of instability or recurrent subluxation. Nor are there objective findings of instability or subluxation shown on the examination or in the VA treatment records. Given the lack of any credible subjective complaints or objective findings of subluxation of the left knee, a separate evaluation for subluxation or instability is not warranted. As the evidence does not show any meniscus conditions, findings of malunion of the tibia and fibula, or ankylosis of the left knee, there is no basis for a rating under DC’s 5256, 5258, 5259, and 5262. For these reasons, the Board finds that there is a preponderance of the evidence against the claim for a rating greater than 30 percent for left knee degenerative joint disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for a higher initial rating for left knee strain with degenerative joint disease must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran’s increased rating claim was received in June 2013. A formal claim for TDIU was received in February 2020. The February 2020 TDIU claim reflects that the Veteran reported that he last worked in 2012. In December 2019, the Veteran submitted an opinion from a certified rehabilitation counselor. According to the vocational opinion, the Veteran last worked in 2012 and is in receipt of Social Security disability benefits. The Veteran had a 100 percent combined schedular rating from November 24, 2014 through March 31, 2015 and since December 10, 2019. The Board notes that the attainment of a 100 percent combined schedular rating does not always render moot a subsequent TDIU claim. VA's duty to maximize benefits requires it to assess all a claimant's service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). There is conflicting information about the Veteran’s employment history. In correspondence received in December 2020, the Veteran’s representative indicated that the Veteran has not worked since 2012. Some VA treatment records during the appeal period indicate that the Veteran was reportedly employed. Treatment records dated in January 2015 noted that the Veteran was a contractor. A February 2015 physician letter indicated that the Veteran was to return to work in March 2015 following surgery on his right knee. VA treatment records dated in January 2016 and July 2016 noted that the Veteran was working as a drywall installer. Accordingly, additional information about his employment is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. The Veteran should complete a VA Form 21-8940 that shows his educational and employment history and ask his most recent employer to complete a VA Form 21-4192. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.