Citation Nr: 21005952 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-07 854 DATE: February 3, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee limited/painful motion is denied. Entitlement to a rating in excess of 20 percent for left knee recurrent instability and/or subluxation is denied. Entitlement to a total rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s left knee limited/painful motion is not productive of flexion limited to 30 degrees or less. 2. The Veteran’s left knee symptoms have been manifested by no more than moderate recurrent subluxation/instability. 3. The Veteran’s service-connected disabilities do not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee limited/painful motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a rating in excess of 20 percent for left knee recurrent instability and/or subluxation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1980 to November 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided sworn testimony at a hearing before the undersigned in November 2016. This case was previously remanded by the Board in March 2017, March 2018, and February 2020 decisions for further development. In March 2017, the issue of entitlement to a TDIU was found to be part of the appeal, and the Board found the Veteran was entitled to a separate rating of 20 percent pursuant to DC 5257 based upon recurrent instability and/or subluxation. In the February 2020 decision, the Board granted entitlement to a separate 20 percent rating for locking. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran’s disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 1. Entitlement to a rating in excess of 10 percent for left knee limited/painful motion In the February 2020 Board decision, the Board noted that the Veteran’s last afforded examination was in September 2018 and essentially determined that the examination was not adequate for rating in light of recent Court decisions, which will be discussed below. Because the prior examinations are not adequate for rating purposes, in adjudicating this issue, the Board will rely on the findings and conclusions set forth in the post-remand, October 2020, VA examination report. The Board indicated that during the appeal, the United States Court of Appeals for Veterans Claims (Court) made a precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). In a separate decision, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” Sharp v. Shulkin, 29 Vet. App. 26 (2017). In light of these decisions, the Board remanded the claim for a new VA examination. See Barr v. Nicholson, 21 Vet. App. 21 303, 312 (2007). The Veteran contends that he is entitled to a rating in excess of 10 percent for his left knee limited/painful motion. The Veteran’s left knee disability is rated under DC 5260 for limitation of flexion. Under 38 C.F.R. § 4.71a, DC 5260, where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Post-remand, the Veteran was provided a VA examination for his left knee in October 2020. The VA examination’s current diagnosis was left knee degenerative joint disease, osteoarthritis post arthroscopy with scars and residual instability. The Veteran did not report flare-ups of the left knee. The exam results showed the initial range of motion was flexion limited to 60 degrees, pain noted on flexion and extension, and objective evidence of localized tenderness or pain on palpation of the joint. There was evidence of pain with weight bearing and objective evidence of crepitus. The examiner described range of motion immediately after repetitive use over time as 0 to 60 degrees, while pain, fatigue and weakness significantly limit functional ability. No muscle atrophy and no ankylosis were noted. There was objective evidence of pain on passive range of motion testing for the left knee when used in non-weight bearing. The VA examiner noted cartilage deterioration resulting in the DJD and osteoarthritis. The Board finds that the preponderance of the evidence is against a finding the Veteran is entitled to a rating in excess of 10 percent for limitation of motion for his left knee. Under DC 5260, to warrant a rating in excess of 10 percent, flexion must be limited to 30 degrees. Similarly, the Veteran had full left knee extension. At no time during the appeal period has the Veteran’s left knee been limited to less than 45 degrees flexion or zero degrees extension. A higher evaluation under DCs 5260 or 5261 is not warranted because the Veteran has noncompensable limitation of motion under both codes. As such, separate 10 percent ratings, or a single rating of 20 percent, is not warranted. In light of the foregoing, even considering the Veteran’s limitation of function during flare-ups, and after repetitive range of motion testing, and his reported functional limitations (e.g., functional loss after prolonged walking, as well as feeling of knee buckling and giving out), the Board finds that the preponderance of the evidence is against a finding that the Veteran’s left knee disability warrants an increased rating for limitation of motion. A rating in excess of 10 percent for the left knee is not warranted. 2. Entitlement to a rating in excess of 20 percent for left knee recurrent instability and/or subluxation The Veteran contends that he is entitled to a rating in excess of 20 percent for his service-connected left knee disability. The Veteran’s left knee instability is rated under DC 5257 for moderate subluxation or lateral instability. In the March 2017 Board decision, the Veteran was granted the 10 percent rating for left knee instability and the claim was remanded in the February 2020 Board decision to afford the Veteran a new VA examination pursuant to the decision in Sharp v. Shulkin, 29. Vet. App. 26, 33 (2017) concerning the adequacy of VA orthopedic examinations. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms “mild,” “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 the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. The Veteran was provided the VA examination in October 2020 for his left knee. The Veteran complained of left knee pain, left knee buckling while he walks, he takes naproxen as medication for his knee, and requires use of a knee brace and a cane while stating he has difficulty walking any distance without the use of the cane. Upon examination, the Veteran was found to have no recurrent subluxation of the left knee, and slight lateral instability of the left knee. Upon joint instability testing, the results showed 1+ anterior instability, normal posterior instability, 1+ medial instability, and 1+ lateral instability. No evidence of recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment was noted. The Veteran exhibited objective evidence of “slight” instability or subluxation upon physical examination. The Veteran is currently rated at 20 percent, or a “moderate” level of lateral knee instability. For the purposes of determining the severity of the Veteran’s left knee instability, the Board finds that the normal joint stability tests and lack of objective evidence weighs in favor of a rating for “moderate” rather than “severe” instability or subluxation. The evidence demonstrates that the Veteran’s left knee symptoms have more nearly approximated “moderate” rather than “severe” recurrent subluxation or lateral instability throughout the appeal period. Furthermore, as the evidence does not show more frequent episodes of giving way or falling as a result of left knee instability, the Board finds that the preponderance of the evidence is against a disability picture that more nearly approximated “severe” recurrent subluxation or lateral instability at any point during the appeal period. As such, a rating in excess of 20 percent for left knee instability is not warranted. 3. Entitlement to a total rating due to individual unemployability (TDIU) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran essentially contends that his service-connected disabilities prevent gainful employment, warranting a TDIU. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran’s claim for TDIU was remanded in the March 2017, March 2018, and February 2020 Board decisions for additional development. The Veteran filed the VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability in November 2016, indicating he had one year of high school education, no other special education or training, had experience working as a bus boy for approximately three years, and last worked as a stocker at Walmart, where he stopped working in October 2014. The Veteran’s current service-connected disabilities are left knee locking (rated as 20 percent), left knee instability (rated as 20 percent), left knee limitation of motion (rated at 10 percent), tinnitus (rated as 10 percent), right rib fracture (rated as 0 percent), left knee scars (rated as 0 percent) and left ear hearing loss (rated as 0 percent). The combined disability rating is 50 percent. The Veteran therefore does not satisfy the schedular requirements for TDIU entitlement under 38 C.F.R. § 4.16(a). The Board does not have authority to assign a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). Moreover, in the instant case, the Board finds no exceptional or unusual circumstances warranting referral of the case to the appropriate VA official for consideration of a TDIU rating on an extraschedular basis. In this regard, the evidence does not demonstrate that the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. The Board notes that the December 2016 examiner opined that the Veteran has a limited capacity for carrying heavy objects singularly or moderate weight repeatedly, and for tasks that require repeat knee bending. The September 2018 VA examination for knee disability provided an opinion that the Veteran’s left knee disability would impact his work as Veteran has difficulty with prolonged standing and walking; fall risk is secondary to knee instability. The most recent October 2020 VA examination also found Veteran has difficulty with extending walking or standing, if work requires; however, it did not render him unable to secure or maintain substantially gainful physical or sedentary employment. The examiner held Veteran’s disability has no effect on sedentary tasks, though he requires a cane or walker when rising from a seated position. See October 2020 C&P Examination. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities do not individually or collectively preclude him from securing and maintaining substantially gainful employment at any time during the pendency of the appeal. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). As such, the claim must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.