Citation Nr: 21008015 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-24 249 DATE: February 11, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome with degenerative joint disease of the right knee is denied. Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome with degenerative joint disease of the left knee is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from September 4, 2013 to May 26, 2014 is granted. REMANDED Entitlement to TDIU prior to September 4, 2013 is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability has not manifested with extension limited to 15 degrees or more for any period on appeal. 2. The Veteran’s left knee disability has not manifested with extension limited to 15 degrees or more for any period on appeal. 3. From September 4, 2013 to May 26, 2014, the evidence shows that the Veteran’s service-connected disabilities are at least as likely as not preclude the ability to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for patellofemoral syndrome with degenerative joint disease of the right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5261. 2. The criteria for a disability rating in excess of 10 percent for patellofemoral syndrome with degenerative joint disease of the left knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5261. 3. September 4, 2013 to May 26, 2014, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1994 to December 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2011 rating decision of the Milwaukee, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2017. In March 2018, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268 (1998). In April 2020, the RO granted TDIU, effective May 27, 2014. The RO noted that the effective date was the date of receipt of the Veteran’s claim for entitlement. However, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), it was held that a claim for TDIU is part of an increased rating claim when such is raised by the record. Therefore, the claim for TDIU prior to May 27, 2014, must still be adjudicated. Increased Rating - Knees Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where 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. See 38 C.F.R. § 4.7. Limitation of motion of the knee is rated under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension). The Veteran’s service-connected degenerative joint disease, for both knees, is evaluated as 10 percent disabling under Diagnostic Code 5261. Under Diagnostic Code 5260, flexion limited to 60 degrees is rated zero percent. The criterion for a 10 percent rating is flexion limited to 45 degrees. The criterion for the next higher rating, 20 percent, is flexion limited to 30 degrees. The criterion for the next higher rating, 30 percent, is flexion limited to 15 degrees. Under Diagnostic Code 5261, extension limited to 5 degrees is rated zero percent. The criterion for a 10 percent rating is extension limited to 10 degrees. The criterion for the next higher rating, 20 percent, is extension limited to 15 degrees. The criterion for the next higher rating, 30 percent, is extension limited to 20 degrees. A 40 percent rating is assigned with extension limited to 30 degrees. The highest 50 percent rating is assigned with extension limited to 45 degrees. Normal knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, there are other diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected knee disorders. Additional rating criteria are found under Diagnostic Codes 5256 (ankylosis of the knee), 5258 (dislocation of semilunar cartilage), 5259 (removal of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum acquired, traumatic, with weakness and insecurity in weight-bearing objectively). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The United States Court of Appeals for Veterans Claims (Court) has also issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Board has reviewed all relevant evidence, to include lay statements, the Veteran’s July 2017 Board hearing testimony and private and VA medical records, with particular attention to the VA examinations from March 2011 and November 2016. Given the evidence of record, the Board finds the 10 percent ratings currently assigned to the Veteran’s service-connected right knee disability and left knee disability under Diagnostic Codes 5261 to be proper. The possible basis for an increase to a 20 percent rating, taking into account DeLuca factors, under Diagnostic Code 5261 would be a showing of extension to 15 degrees; such is not shown in the record. For the Veteran’s right knee, the March 2011 VA examination report reflects that her right knee extension was to 0 degrees, with objective pain. The November 2016 VA examination report reflects the Veteran’s right knee extension was to 0 degrees, with objective pain. For the Veteran’s left knee, the March 2011 VA examination report reflects that her left knee extension was to 0 degrees, with objective pain. The November 2016 VA examination report reflects the Veteran’s left knee extension was to 0 degrees, with objective pain. No additional degree of limitation was found on the examinations after repetitive use. Accordingly, a higher disability rating is not warranted under Diagnostic Code 5261. The criteria for a higher or separate rating under Diagnostic Code 5260, for limited flexion, have also not been met. The possible basis for an increase to a 20 percent rating, taking into account DeLuca factors, under Diagnostic Code 5260 would be a showing of limitation of flexion of the knee to 30 degrees. At no time during this period on appeal has the Veteran’s flexion been limited to 30 degrees for either knee. For the Veteran’s right knee, the March 2011 VA examination report reflects that her right knee flexion was to 120 degrees, with objective pain. The November 2016 VA examination report reflects the Veteran’s right knee flexion was to 120 degrees, with objective pain. For the Veteran’s left knee, the March 2011 VA examination report reflects that her left knee flexion was to 120 degrees, with objective pain. The November 2016 VA examination report reflects the Veteran’s left knee flexion was to 120 degrees, with objective pain. No additional degree of limitation was found on the examinations after repetitive use. Accordingly, a higher or separate disability rating is not warranted under Diagnostic Code 5260. The November 2016 VA examiner also determined that there was evidence of pain in the bilateral knees with passive range of motion and when used in non-weightbearing. However, the active range of motion remained the same. There is nothing in the record that indicates that the Veteran otherwise has or would have limitation of extension to the extent necessary for a rating in excess of 10 percent, or a compensable rating based upon limitation of flexion or extension, to include during flare-ups of pain, in active or passive motion, weight or non-weightbearing. See Correia, supra. The Board has also considered whether separate or increased ratings may be assigned under other diagnostic codes, but has found none. Neither of the VA examinations have shown that the Veteran has ankylosis of the right or left knee to warrant a separate rating under Diagnostic Code 5256. Further, there is no objective evidence of right or left knee dislocation of semilunar cartilage, symptomatic removal of semilunar cartilage, or genu recurvatum on any of the VA examination reports. Accordingly, Diagnostic Codes 5258, 5259 and 5263 are not for application. Further, effective February 7, 2021, VA amended the criteria for rating musculoskeletal system and muscle injuries disabilities. See 83 Federal Register 76453 (November 30, 2020). VA published in the Federal Register the proposed rule for Schedule for Rating Disabilities: musculoskeletal system and muscle injuries on November 30, 2020. The summary in the Federal Register notes that the purposed of this revision is to ensure that the schedule uses current medical terminology and provided detailed and updated criteria for the evaluation of the musculoskeletal disabilities. The revised changes effected criteria for instability of the knee under Diagnostic Code 5257 and for impairment of the tibia and fibula under Diagnostic Code 5262. In this case, however, there is no objective evidence found in the private and VA medical records or lay statements that the Veteran experiences or has a diagnosis of joint instability, patellar subluxation, and/or impairment of the tibia and fibula. Therefore, the revisions are not applicable to the instant appeal and need not be discussed further. The Board accepts that the Veteran is competent to report that her disabilities are more severe than the ratings currently assigned reflect. Layno v. Brown, 6 Vet. App. 465, 469 (1994). While the Board is sympathetic to the difficulties presented by the Veteran’s right and left knee conditions, to include pain described as intermittent, sharp, throbbing and stabbing, as noted in a March 2018 VA medical note, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that she meets the criteria for higher disability ratings, her complaints along with the medical findings do not meet the schedular requirements. In sum, the preponderance of the evidence is against the award of a rating in excess of 10 percent for the Veteran’s right knee disability and the Veteran’s left knee disability under Diagnostic Code 5261. As the preponderance of the evidence is against the award of increased evaluation, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Entitlement to TDIU from September 4, 2013 to May 26, 2014 is granted. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing and following substantially gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, supra. TDIU may be assigned when the schedular rating is less than total where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more, and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The RO has granted TDIU, effective May 27, 2014, the date of receipt of the Veteran’s claim for entitlement, which noted that the Veteran’s lower back and knee disabilities prevented her from securing or following any substantially gainful occupation. However, the Veteran’s TDIU claim is part and parcel of an increased rating claim. Thus, the claim for TDIU prior to May 27, 2014, must still be adjudicated. As noted above, the time period prior to September 4, 2013 will be discussed in the remand portion below. From September 4, 2013 to May 26, 2014, the Veteran’s service-connected disabilities included a lumbar spine disability, rated as 40 percent disabling, and sufficient additional disability to add up to 70 percent. The Veteran thus met the minimum schedular criteria for consideration for TDIU. 38 C.F.R. § 4.16(a). For this period on appeal, a review of the record shows that the Veteran has been awarded Social Security Administration (SSA) disability benefits for disorders of the back and affective/mood disorders since January 2008. A March 2014 VA back examination report shows that the VA examiner noted that based on the Veteran’s symptoms and history, as well as findings in the examination report, that the Veteran may not be able to perform tasks required for gainful employment. It was noted that the Veteran was standing throughout the interview and was limited due to her complaint of constant pain. The Board accordingly finds sufficient evidence from the period from September 4, 2013 to May 26, 2014 to support a grant of TDIU, and the claim is granted. REASONS FOR REMAND Entitlement to TDIU prior to September 4, 2013 is remanded. Prior to September 4, 2013, the Veteran did not meet the percentage requirements for eligibility for TDIU set forth in 38 C.F.R. § 4.16(a). However, there is evidence from this earlier period calling into question the Veteran’s ability to return to substantially gainful employment. A May 2011 private medical note associated with the Veteran’s SSA records, shows that the private examiner believed that the Veteran had some amount of back pain; however, it was difficult to appreciate what the pathology may be in the absence of any imaging study reports to review and with an overall fairly normal examination. At worst, the examiner noted that the Veteran would be a candidate for modified-type activities, but in general, the examiner stated the Veteran’s prospects for being able to be functionally employed were arduous. A July 2011 VA medical addendum shows, in regard to the knees, that the Veteran had stated that she had severe functional impairment. The VA examiner noted that the Veteran had lumbar arthralgia with normal x-rays. The VA examiner stated that the Veteran would not be able to hold a job that required heavy manual work; however, the Veteran was capable of a sedentary job or job requiring light physical labor. A private medical note received in March 2012 shows that the Veteran was diagnosed, in part, with osteoarthritis, and low back pain with lumbar disk bulging. The private examiner noted that she did not feel that the Veteran would be able to return to the workplace to perform any meaningful employment anytime in the foreseeable future. The evidence of record leads the Board to determine that the RO must first refer the claim for TDIU on an extraschedular basis to the Director of VA’s Compensation Service to determine whether the Veteran is entitled to an extraschedular TDIU rating prior to September 4, 2013, under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the case to the Director of VA’s Compensation Service for a determination in the first instance as to whether the assignment of a TDIU on an extraschedular basis is warranted during the period prior to September 4, 2013. All resultant documentation must be added to the claims file. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.