Citation Nr: 21007830 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-00 446 DATE: February 10, 2021 ORDER A 20 percent disability rating for effusion related to dislocated semilunar cartilage from March 2, 2012, is granted, subject to the laws and regulations governing the award of monetary benefits. A separate 10 percent for right knee instability from March 2, 2012 is granted, subject to the laws and regulations governing the award of monetary benefits. Referral for consideration of a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis prior to April 16, 2018, is denied. FINDINGS OF FACT 1. The evidence shows that from March 2012, the Veteran had demonstrated episodes of effusion in his right knee joint related to the prior meniscal surgeries. 2. Slight right knee instability is shown during the time period at issue. 3. Prior to April 16, 2018, the Veteran did not meet the schedular criteria for an award of TDIU, and the evidence does not reasonably suggest that he was unemployable solely due to service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating for effusion in the Veteran’s right knee joint from March 2, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5258. 2. The criteria for a separate 10 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5257. 3. The criteria for referral for extraschedular consideration of TDIU prior to April 16, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1998 to May 2000. This matter has a lengthy procedural history. The appeal arises from a February 2013 decision by the Agency of Original Jurisdiction (AOJ). The Veteran provided sworn testimony in support of his appeal during a December 2017 videoconference hearing before the undersigned Veterans Law Judge. The Board remanded for further evidentiary and procedural development in February 2018, July 2018, and again in September 2020. Several additional issues were resolved along with way to include the amputation-level rating assigned to the Veteran’s right knee effective in April 2018 and most recently, the AOJ’s grant of TDIU benefits effective in April 2018. However, the issues of a disability rating greater than 10 percent for postoperative residuals of a right knee meniscal tear prior to April 2018, a separate compensable disability rating for instability of the right knee prior to April 2018, and entitlement to TDIU prior to April 2018 remain for Board review. Increased Rating Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating claims for increased ratings, VA must evaluate the Veteran’s condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. Because this appeal has been ongoing for a lengthy period of time, and because the level of a Veteran’s disability may fluctuate over time, the VA is required to consider the level of the Veteran’s impairment throughout the entire period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O’Connell v. Nicholson, 21 Vet. App. 89 (2007). Historically, the Veteran tore his right meniscus during advanced individual training, and underwent surgery to revise the tear during service. Service connection for residuals of right knee surgery was granted in a September 2001 AOJ decision. In October 2005, the Veteran underwent a second surgery on the right meniscus. A third surgery involving the right meniscus was accomplished in November 2011. The instant appeal had its inception with an October 2011 claim for a temporary total disability rating related to this surgery. 1. Postoperative residuals of right knee meniscal tear Currently, a 10 percent disability rating is in effect under the provisions of Diagnostic Code 5259, for the symptomatic removal of semilunar cartilage. This rating has been in effect since April 16, 2018. In the two prior remands, the Board observed that the Veteran’s right meniscal tear raises the possibility of a higher rating for meniscal injury under Diagnostic Code 5258 dislocated semilunar cartilage with effusion into joint and locking rather than under Diagnostic Code 5259. Rating under Diagnostic Code 5258 would benefit the Veteran because Diagnostic Code 5258 carries a 20 percent disability rating, whereas Diagnostic Code 5259 provides a 10 percent rating. 38 C.F.R. § 4.71a. The Board’s review reveals several mentions of right knee joint effusion in the Veteran’s medical records during the applicable time frame. A small effusion with post-operative changes involving the right medial meniscus was identified during a January 2012 magnetic resonance imaging scan. Clinical examination during a March 2012 VA examination showed mild to moderate effusion and tenderness to touch at the right medical aspect of the knee. In the discussion portion of the examination report, the examiner noted the Veteran’s meniscal tear which caused frequent episodes of joint pain and joint effusion. Subsequent VA examination reports reflect no effusion noted upon examination. The magnetic resonance imaging study showing effusion in January 2012 is the most reliable evidence of effusion into the joint, however. Given that the Veteran’s knee may have still been healing following the November 2011 surgery, the magnetic resonance imaging scan in January 2012 may not in fact reflect the permanent state of the right knee. However, absent a later magnetic resonance imaging scan for comparison purposes, the January 2012 report remains the best evidence as to the state of his joint. As the January 2012 test report is supported by the March 2012 clinical findings, the Board accords the Veteran the benefit of the doubt, and finds that effusion into the right knee joint was a result of the multiple surgeries he underwent for correction of the torn right meniscus. As effusion into the right knee joint is demonstrated, the most appropriate Diagnostic Code for rating this residual of surgery is Diagnostic Code 5258, which provides a 20 percent disability rating. The assignment of a particular Diagnostic Code is “completely dependent on the facts of a particular case.” Butts v Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board finds that rating the Veteran’s meniscal surgery residuals under the provisions of Diagnostic Code 5258 is not only more beneficial to the Veteran, but more accurate in terms of rating the Veteran for the residuals demonstrated in the evidence of record. Therefore, the evidence supports a 20 percent disability rating for effusion into his right knee joint between March 2, 2012, the day after the 100 percent temporary total disability rating expired following his November 2011 surgery; and April 16, 2018, the date that the 60 percent amputation-analogous rating went into effect. 38 C.F.R. § 4.71a, Diagnostic Code 5258. As explained in detail in the prior Board decision, a rating higher than the 60 percent amputation level is precluded by law. 2. Separate rating for right knee instability Other impairments of the knee, manifested by recurrent subluxation or lateral instability, are rated as 10 percent when such impairment is slight, 20 percent for moderate impairment, and 30 percent for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Separate ratings may be assigned for decreased range of motion and instability of the knee without violating the prohibition against pyramiding of ratings. 38 C.F.R. § 4.14; VAOPGCPREC 23-97. Because the Veteran has received multiple knee braces from the VA prosthetic service over the years that this appeal has been active, the Board remanded for the AOJ to consider whether a separate disability rating was warranted for right knee instability. Impairment of the knee which is manifested by recurrent subluxation or lateral instability is rated as 10 percent when such impairment is slight, 20 percent for moderate impairment, and 30 percent for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran has reported instability. For instance, in a statement received in May 2011, the Veteran described complete right knee give-way on several occasion which caused him to fall. On VA examination in May 2011, he reported weakness and give-way however examination found on right knee instability. He had surgery in November 2011. After the surgery, stability testing during the March 2012 VA examination revealed normal stability with no subluxation. The report of a November 2012 VA examination shows normal stability with no subluxation. However, the Veteran did report subjective sensation of weakness with give-way that had caused falls – usually when taking a step forward and placing weight on the right leg. In August 2015, he was prescribed a knee brace based on a diagnosis of meniscal tear with unstable knee. On VA examination in December 2015, he self-described loss of stability but stability testing was normal. At a hearing in December 2017, the Veteran reported using crutches due to right knee give-way which happened 3 to 4 times per week. On VA examination in April 2018, the examiner found that functional impairment included less movement than normal resulting in weakened movement, and difficulty walking, sitting and standing. However, examination demonstrated no instability. Here, the Veteran credibly reported subjective sensation of weakness and give-way leading to falls. He was prescribed a knee brace based upon a diagnosis of meniscal tear with unstable knee in 2015. Thus, there is credible evidence of at least slight right knee instability. However, clinical testing throughout the entire appeal period has consistently found no objective evidence of instability. Overall, the Board finds that the Veteran has manifested no more than slight right knee instability for the entire appeal period. Finally, the Veteran’s representative has argued for application of an extraschedular rating based upon 3 knee surgeries. Here, the Veteran has been assigned appropriate convalescent ratings as well as separate ratings for limitation of motion, instability and meniscal surgery residuals. The Board finds no aspects of right knee disability not contemplated in the assigned ratings. 3. TDIU prior to April 2018 TDIU may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident will be considered as one disability. Alternatively, a total disability rating for compensation based on unemployability may be assigned to a Veteran who is unable to secure and follow a substantially gainful occupation by reason of his/her service-connected disabilities. The Veteran’s employment history, educational and vocational attainment as well as his particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of 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 and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). 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.) Prior to April 2018, the effective date of the current grant of TDIU, service connection for right knee arthritis was rated as 20 percent disabling, and a right knee surgical scar was rated as 0 percent disabling. Additionally, the Board has just granted a 20 percent disability rating for the right knee meniscal tear with joint locking and effusion from March 2, 2012 and a separate 10 percent rating for instability from March 2, 2012. These may be combined as arising from a common etiology which would result in but still a 40 percent rating under the formula set forth at 38 C.F.R. § 4.25. Thus, after implementing the Board’s grant, the Veteran’s combined rating will be 40 percent during the time period at issue here. The 40 percent combined disability rating does not meet the 38 C.F.R. § 4.16(a) schedular criteria for an award of TDIU. Nevertheless, the Veteran may be entitled to TDIU on an extraschedular basis if it is established that he/she is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but the evidence raises a reasonable possibility of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of TDIU. 38 C.F.R. § 4.16(b). Neither the AOJ nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board finds that the evidence of record does not raise a reasonable possibility that the Veteran was unemployable prior to April 2018 solely due to his right knee disability. The Veteran has a high school education. He reported that he stopped working as a janitor in April 2013, when he used up his sick leave and had to stop working. His former employer, a school district, confirms that he was last employed in April 2013, but gave the reason for his termination as, “PTSD.” He has prior work experience as a forklift driver, janitor and security guard. Review of the evidence of record shows that the Veteran has been adjudicated unemployable by the Social Security Administration. He has received Social Security disability benefits since April 2013 due to disabilities including diabetic neuropathy, a thyroid gland disorder, and disabilities of his spine. Additionally, his VA medical records reveal significant psychiatric symptomatology and cardiology diagnoses. Other relevant evidence available for review includes the Veteran’s VA vocational rehabilitation file. These documents show that the Veteran was discharged from the vocational rehabilitation service in July 2020 because he failed to provide necessary documentation and was deemed not ready to actively pursue services at that time. The Veteran last worked in March 2013. The record reflects that, in February 2012, the Veteran’s orthopedic physician found that the Veteran could “return to work without restrictions” when considering his right knee disability. In May 2012, the Veteran’s private orthopedic physician again found that the Veteran was “able to return normal duties.” The November 2012 VA examiner found that the Veteran was capable of performing all activities of daily living without assistance, but may have difficulty with repetitive physical or sedentary tasks that require prolonged standing, squatting or kneeling frequently, climbing ladders, incline or stairs frequently, or walking over uneven terrain. At a May 2014 examination, the Veteran indicated that he had been working until April 2013 after a back injury requiring surgery. The examiner indicated that the Veteran was unable to perform physical duties with lifting requiring more than one hand due to use of a cane in his right hand, and that he was unable to perform squatting, prolonged walking, and that the right knee limited employment as a laborer but other options were available that would include a more sedentary lifestyle. A functional capacity evaluation performed by the Social Security Administration in 2015 found that, with consideration of service-connected and nonservice-connected disabilities, the Veteran had the functional capacity to work as a security guard although it was ultimately decided that the Veteran had been disabled since 2013 due to a primary diagnosis of diabetic neuropathy and a secondary diagnosis of thyroid gland disorder. It was further noted that the Veteran’s back disability prevented him from completing an 8-hour day of combined sitting, standing and/or walking or equivalent work schedule. Overall, the Veteran did credibly describe limitations in prolonged standing and walking, climbing, kneeling etc. due to his right knee disability since the inception of the appeal. However, while he had such limitations, the Veteran was engaged in substantially gainful employment prior to his back injury leading to his unemployability in 2013. He had been medically cleared by his orthopedic physician for normal work duties when specifically considering his right knee disability. The Board finds no appreciable change in the right knee limitations since the inception of the appeal until 2018 when he is deemed unable to secure substantially gainful employment effective to the date he has been service-connected for the lumbar spine disability. As such, the Board finds that the persuasive lay and medical did not raise a reasonable possibility that the Veteran was unable to obtain or retain substantially gainful employment solely as a result of his service-connected right knee disability for the time period prior to April 2018. As such, the criteria for referral of the claim for extraschedular consideration have not been met. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, 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.