Citation Nr: 21008158 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-00 620A DATE: February 11, 2021 ORDER Entitlement to disability rating in excess of 10 percent for a right knee disability, based limitation of flexion, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 29, 2017, is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's right knee disability is not manifested by limitation of flexion to 30 degrees; limitation of extension to 10 degrees; moderate or severe recurrent subluxation or lateral instability; ankylosis; nonunion of the tibia and fibula; dislocated semilunar cartilage with frequent locking; removal of semilunar cartilage; or genu recurvatum. 2. Prior to September 29, 2017, the Veteran did not meet the schedular criteria for a TDIU, and the preponderance of the evidence is against finding that the Veteran was unable to obtain or retain substantially gainful employment due to service-connected disabilities alone. CONCLUSIONS OF LAW 1. The criteria for disability ratings in excess of 10 percent for a right knee disability, based on limitation of flexion, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a. 2. Prior to September 29, 2017, the criteria for entitlement to a TDIU due to service-connected disabilities 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 in the United States Army from November 1987 to February 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018 and June 2020 decisions, the Board remanded these claims for additional development. They have returned to the Board for further appellate review. The Veteran's claim for entitlement to a TDIU was recognized by the Board in the June 2020 decision as part and parcel of the Veteran's increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of the appeal, the Veteran was granted entitlement to a TDIU in a November 2019 rating decision effective June 25, 2019, and a November 28, 2020, rating decision awarded an earlier effective date of September 29, 2017. As the claim for TDIU was not granted for the entire claims period, it is considered a partial grant and the issue of entitlement to a TDIU prior to September 29, 2017, is presently before the Board and will be addressed herein. The November 2020 rating decision also granted the Veteran separate disability ratings for her right knee disability of 10 percent for lateral instability and a 0 percent for limitation of extension. However, as the award of separate ratings is considered a partial grant, the increased rating claim for the Veteran's service-connected right knee disability remains before the Board. Increased 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. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See 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 diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to an increased disability rating for a right knee disability. The Veteran's service-connected right knee disability is currently rated as 10 percent disabling under DC 5010-5260 for traumatic arthritis and limitation of flexion, effective May 22, 2007; 10 percent under DC 5257 for lateral instability, effective November 18, 2020; and 0 percent under DC 5010-5261 for traumatic arthritis and limitation of extension, effective November 18, 2020. 38 U.S.C. § 4.71a. The Veteran contends that the symptoms of her right knee disability are productive of higher ratings. Under DC 5003 and 5010, degenerative arthritis and traumatic arthritis established by X-ray findings are rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Under DC 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 warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, limitation of extension of the leg to 45 degrees warrants a 50 percent rating; limitation to 30 degrees warrants a 40 percent rating; limitation to 20 degrees warrants a 30 percent rating; limitation to 15 degrees warrants a 20 percent rating; limitation to 10 degrees warrants a 10 percent rating; and limitation to 5 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a. Normal knee flexion is to 140 degrees, and normal knee extension is to 0 degrees. See 38 C.F.R. § 4.71, Plate II. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran was provided a VA examination for knee and lower leg conditions in November 2020. The examiner diagnosed the Veteran with a right knee meniscal tear, right knee joint osteoarthritis, and right knee instability. The Veteran’s right knee range of motion was measured at 5 to 85 degrees for flexion and 85 to 5 degrees for extension. The examiner noted pain on flexion and extension that causes functional loss. The examiner found evidence of pain with weight bearing, localized tenderness, pain on palpation, and crepitus. The examiner noted the Veteran’s regular use of a cane, constant use of a walker, and constant use of a brace to assist locomotion. The examiner found evidence of pain on passive range of motion testing and evidence of pain when the knee joints are used in non-weight bearing. The examiner found that the Veteran was able to perform repetitive use testing with at least three repetition without additional functional loss or range of motion. The examiner found that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time. The examiner found that pain and weakness significantly limit functional ability with flare ups. The examiner measured functional loss due to flareups at 5 to 85 degrees for flexion and 85 to 5 degrees for extension. The examiner found no additional factors contributing to the Veteran’s right knee disability. The examiner found reduced strength and no evidence of muscle atrophy. The examiner found no ankylosis, no history of recurrent subluxation, and no history of lateral instability. The examiner found a history of recurrent effusion, described by the Veteran as knee swelling. Joint stability testing was performed, and lateral instability was found in the Veteran’s right knee. The examiner described the Veteran’s instability as slight. The examiner did not find recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner found a meniscal tear with frequent episodes of joint pain and frequent episodes of joint effusion. The examiner found no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran’s right knee disability. The Veteran was provided a VA examination for knee and lower leg conditions in July 2019. The Veteran was diagnosed with right knee strain, right meniscal tear, and right knee osteoarthritis. The examiner was unable perform range of motion testing, repetitive use testing, or stability testing. The Veteran refused testing due to concerns about pain. The examiner noted pain on rest and nonmovement. The examiner found localized tenderness, pain on palpation, and pain with weight bearing. The examiner found no evidence of crepitus. The examiner noted the Veteran’s constant use of a cane and regular use of a walker to assist locomotion. The examiner found no additional factors contributing to the Veteran’s right knee disability. The examiner found reduced strength and no evidence of muscle atrophy. The examiner found no ankylosis, no history of recurrent effusion, and no history of lateral instability. The examiner noted a history of slight recurrent subluxation. The examiner did not find recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner found a meniscal tear without frequent episodes of joint pain, locking, or effusion. The examiner found no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran’s right knee disability. The Veteran was provided a VA examination for knee and lower leg conditions in November 2017. The examiner diagnosed the Veteran with a right knee osteoarthritis. The Veteran’s right knee range of motion was measured at 0 to 135 degrees for flexion and 135 to 0 degrees for extension. The examiner found the same range of motion on passive testing. The examiner found no pain on examination. The examiner found no evidence of localized tenderness, pain on palpation, pain with weight bearing, or crepitus. The examiner found no additional functional loss with repetitive use testing, repeated use, or flare ups. The examiner noted the Veteran’s regular use of a brace. The examiner found no additional factors contributing to the Veteran’s right knee disability. The examiner found normal muscle strength and no evidence of muscle atrophy. The examiner found no ankylosis, no history of recurrent subluxation, no history of recurrent effusion, and no history of lateral instability. Joint stability testing was performed, and no joint instability was found in the Veteran’s right knee. The examiner did not find recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner found no meniscal condition. The examiner found no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran’s right knee disability. The Veteran was provided a VA examination for knee and lower leg conditions in November 2014. The examiner diagnosed the Veteran with right knee osteoarthritis. The Veteran’s right knee range of motion was measured flexion to 125 degrees with painful motion at 90 degrees. The examiner found no limitation of extension. The examiner found no additional limitation in range of motion following repetitive use. The examiner found less movement than normal, pain on movement, and swelling after repetitive use. The examiner found tenderness or pain to palpation. The examiner found normal muscle strength and no evidence of muscle atrophy. The examiner found no ankylosis and no history of recurrent patellar subluxation/dislocation. Joint stability testing was performed, and no joint instability was found in the Veteran’s right knee. The examiner did not find recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, gena recurvatum, or any other tibial and/or fibular impairment. The examiner found a meniscal tear with frequent episodes of joint pain and joint effusion. The examiner noted the Veteran’s occasional use of a cane and walker. The examiner found no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran’s right knee disability. The Veteran was provided a VA examination for knee condition in June 2011. The examiner diagnosed the Veteran with right knee osteoarthritis. The examiner found tenderness and positive patellar grind test on the Veteran’s right knee. The examiner found no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, or subluxation. The examiner found flexion to 120 degree and no limitation of extension. The examiner found that right joint function is not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Joint stability testing was performed and found to be within normal limits for the Veteran’s right knee. The Board also notes that while treatment records also periodically document the Veteran's complaints and treatment related to her right knee disability, nothing in these records during the pendency of the claim show her adverse symptomatology to be markedly worse than what was reported at the above VA examination. Based on the foregoing evidence, the Board finds that increased ratings based on limitation of motion of the Veteran's right knee disability are not warranted. See 38 C.F.R. § § 4.7, 4.71a. A rating in excess of 10 percent for limitation of flexion and in excess of 0 percent for limitation of extension are not available, as such ratings would require a finding of limitation of flexion 30 degrees or limitation of flexion to 10 degrees, which are not shown even when incorporating functional loss due to the factors set forth in 38 C.F.R. § § 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). A rating in excess of 10 percent under DC 5257 requires a finding of at least moderate subluxation or lateral instability. 38 C.F.R. § 4.71a. Here, the evidence supports the existence of lateral instability of "slight" severity. The November 2020 VA examination found no history of recurrent subluxation or history of lateral instability. The examiner performed joint stability testing and found normal anterior instability, posterior instability, and medial instability. The examiner found lateral instability between 0-5 millimeters. The examiner described the Veteran’s lateral instability as slight. Thus, the Board finds that the medical evidence of record does not support a finding of moderate or severe recurrent subluxation or lateral instability, necessary for a higher rating. 38 C.F.R. § 4.71a, DC 5257. The Board has also considered whether separate or increased evaluations are warranted under any other Diagnostic Codes pertaining to knee disabilities that would afford the Veteran higher ratings. Here, there is no evidence of ankylosis of the knee to warrant a rating under DC 5256; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under DC 5262 for impairment of the tibia; no evidence of dislocated semilunar cartilage with frequent locking to warrant a rating under DC 5258; no evidence of removal of semilunar cartilage to warrant a rating under DC 5259; and no evidence of genu recurvatum to warrant a rating under Diagnostic Code 5263. Hence, the Board will not discuss these Diagnostic Codes any further. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran's right knee disability is not manifested by limitation of flexion to 30 degrees; limitation of extension to 10 degrees; moderate or severe recurrent subluxation or lateral instability; ankylosis; nonunion of the tibia and fibula; dislocated semilunar cartilage with frequent locking; removal of semilunar cartilage; or genu recurvatum. Therefore, the Board finds that the criteria for a higher rating are not met. See 38 C.F.R. § 4.71a; Fenderson, supra. While the Veteran believes that a higher rating is warranted for her right knee disability, the evidence of record does not support this belief. While the Veteran is competent to report the symptoms of her disabilities, she is not competent to opine on matters requiring medical knowledge, such as determining the severity of her medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Again, it is important for the Veteran to understand that the medical findings provide highly probative evidence against the claims that the Board cannot, unfortunately, ignore. The medical findings outweigh the Veteran's belief that her disability warrants a higher disability rating and provide a clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claim. This does not suggest, in any way, that the Veteran is not having problems with her right knee disability. It is these problems that are the basis of the current ratings. While the Board acknowledges the Veteran has significant problems as a result of her right knee disability, the evidence of record does not indicate that the Veteran meets the rating criteria for higher evaluations or additional separate ratings. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, where the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor her representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Entitlement to a TDIU prior to September 29, 2017. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating 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, or 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. See 38 C.F.R. § 4.16 (a). Prior to September 29, 2017, the Veteran was service connected for the following: • Hysterectomy, rated as 50 percent disabling from February 16, 1998. • Major depressive disorder, rated as 10 percent disabling from February 16, 1998. • Degenerative disc disease, lumbar spine, rated as 10 percent disabling from February 16, 1998. • Right knee osteoarthritis, rated as 10 percent disabling from May 22, 2007. The Veteran's combined evaluation for compensation was 60 percent from February 16, 1998. See 38 C.F.R. § 4.25. Therefore, the Board finds that the Veteran did not meet the schedular criteria for TDIU at any time prior to September 29, 2017. See 38 C.F.R. § 4.16 (a). Thus, the claim of entitlement to TDIU prior to September 29, 2017, on a schedular basis must be denied. The record indicates that the Veteran was engaged in substantially gainful employment from October 2001 to May 2017. See June 2009 Application for Increased Compensation Based on Unemployability. Additionally, the Board has considered whether referral for consideration of TDIU on an extraschedular basis is warranted. See 38 C.F.R. § 4.16 (b). However, the preponderance of the evidence is against a finding that the Veteran was unable to obtain or retain substantially gainful employment due to service-connected disability alone prior to September 29, 2017. The record also shows that the severity, symptomatology, and difficulties attributable to the Veteran's service-connected disabilities prior to September 29, 2017, are contemplated by the assigned rating criteria. The Veteran's treatment records do not indicate that the Veteran's service-connected disabilities had more of an adverse impact on the Veteran's occupational impairment than contemplated by the assigned rating criteria. Thus, the Board finds that this case does not present any unusual or exceptional circumstances that would justify a referral of the total rating claim to the Director of the VA Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16 (b). On review of the record, the Board finds that the disability evaluation of 60 percent assigned under the VA Schedule for Rating Disabilities for the Veteran's service-connected disabilities accurately reflect the Veteran's overall impairment to her earning capacity due to her service-connected disabilities prior to September 29, 2017. In summary, the Veteran’s combined disability rating was insufficient to consider TDIY on a schedular basis prior to September 29, 2017. The evidence of record does not suggest that the Veteran is entitled to a TDIU on an extraschedular basis prior to September 29, 2017, because it does not show the she was precluded from maintaining and securing substantially gainful employment as a result of service-connected disabilities alone from her last day of employment in May 2017, until September 29, 2017. Accordingly, the Board finds that the claim for a TDIU prior to September 29, 2017, is denied. 38 C.F.R. § 4.16. (Continued on the next page)   The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, Associate 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.