Citation Nr: 21008866 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 07-14 238 DATE: February 18, 2021 ORDER Entitlement to an increased evaluation in excess of 20 percent for a left knee post-operative left medial meniscectomy with arthritis, other than instability is denied. Entitlement to a total disability rating based on individual unemployability prior to July 19, 2017 is denied. FINDING OF FACT 1. Throughout the appeal period, the evidence demonstrates that the Veteran’s left knee is manifested by cartilage, semilunar, dislocated, with frequent episodes of “locking”, pain, and effusion into the joint with flexion. The assigned rating represents the maximum schedular rating for the issue under diagnostic code 5258. No compensable limitation of motion was found on examination to warrant a separate or increased evaluation. Instability has been separately rated. 2. The Board finds that the pertinent and more probative evidence of the record does not demonstrate that the Veteran’s service connected disabilities alone are of sufficient severity to render him unable to secure and maintain substantially gainful employment, prior to July 19, 2017. CONCLUSION OF LAW 1. The criteria for an increased evaluation in excess of 20 percent for a left knee post-operative left medial meniscectomy with arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.71a, Diagnostic Codes 5258, 5260, 5261. 2. The criteria for a total disability rating based on individual unemployability prior to July 19, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.1, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active duty service from July 1970 to June 1973. He testified at a Board hearing before the undersigned in March 2017; a transcript is of record. By way of history, In December 2018, the Board of Veterans’ Appeals (Board) decided the issue addressed in this decision. The Veteran appealed. In August 2019, the United States Court of Appeals for Veterans Claims (the Court) granted a Joint Motion a Joint Motion for Partial Remand (JMPR), vacating the Board’s December 2018 decision and remanded the following issue, an increased evaluation in excess of 20 percent for a left knee post-operative left medial meniscectomy with arthritis, other than instability for additional adjudication in accordance with the terms of the JMPR. Following the Court’s grant of the JMPR, in April 2020, the Board also remanded the Veteran’s above claim for additional development. The Board finds that there was substantial compliance with the April 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also acknowledges that the regional office (RO) has assigned the Veteran a separate evaluation of 30 percent for left knee instability. This is the maximum rating for instability; there has been no disagreement, thus, the Board will not further address that issue. Orthopedic manifestations, including limitation of motion, remain before the Board. The Veteran has also been awarded a total rating based on individual unemployability (TDIU) with an effective date of July 19, 2017. The issue of a TDIU prior to July 19, 2017 will be discussed below. Lastly, the regional office (RO) referred the Veteran’s TDIU claim to the Director of Compensation and Pension to determine if TDIU was warranted prior to July 19, 2017 on an extra-schedular basis. In response, it was the finding that the evidence of the record failed to support the assignment of an extra-schedular rating for TDIU prior to July 19, 2017. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4 (2019). Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155 (2012). The evaluation of a service-connected disorder requires a review of a Veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R.§4.7 (2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38U.S.C.§5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder. Additionally, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 38 C.F.R. § 4.7 (2019). For conditions that are not specifically listed in the Schedule, VA regulations provide that those conditions may be rated by analogy under the DC for “a closely related disease or injury.” 38 C.F.R. § 4.20 (2019); see 38 C.F.R. § 4.27 (“When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy.” Where, however, a condition is listed in the schedule, rating by analogy is not appropriate. In other words, “[a]n analogous rating... may be assigned only where the service connected condition is unlisted.”) Suttman v. Brown, 5 Vet. App. 127, 134 (1993). Diagnostic Code 5258, 5260, and 5261, of 38 C.F.R. § 4.71a (2019) specifically addresses post-operative arthritic knee disorders under a general rating formula for musculoskeletal disorders. Under Code 5258, a 20 percent rating is warranted where there is cartilage, semilunar, dislocated, with frequent episodes of “locking”, pain, and effusion into the joint with flexion. Under Code 5260, a noncompensable evaluation is warranted to 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 Under Code 5261, a noncompensable evaluation is warranted for extension limited to 5 percent; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent evaluation is warranted for extension limited to 15 degrees; a 30 percent evaluation is warranted for extension limited to 20 degrees; a 40 percent evaluation is warranted for extension limited to 30 degrees; a 50 percent evaluation is warranted for extension limited to 45 degrees. The Veteran has been assigned a 20 percent evaluation through the rating period on appeal. This is based on the provisions of Code 5258, set out above. The Board finds no basis for an award of an increased evaluation as discussed below. TDIU The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). This cannot be awarded by the Board in the first instance, but only considered after a preliminary referral to the Director of the Compensation service. That has been done in this case and the Board may proceed with its consideration. 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). Consideration may not be given to the impairment caused by nonservice connected disabilities. See 38 C.F.R. §§ 3.34, 4.16, 4.19. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Substantially gainful employment is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a Veteran’s earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). 1. Entitlement to an increased evaluation in excess of 20 percent for a left knee post-operative left medial meniscectomy with arthritis, other than instability. The Veteran underwent a VA left knee examination in October 2013. The examiner diagnosed derangement of the left knee; osteoarthritis of the left knee; and Osgood Schlatter disease of the left knee. Left knee flexion was noted at 90 degrees with objective evidence of painful motion on 90 degrees and no objective evidence of painful motion on extension. The examiner also diagnosed some functional impairment of the Veteran’s left knee with left knee joint pain on movement, occasional flaring, and weight bearing pain. The Veteran’s 20 percent evaluation was maintained as there is cartilage, semilunar, dislocated, with frequent episodes of “locking”, pain, and effusion into the joint with flexion. In a September 2017 VA left knee C&P examination, the examiner diagnosed the Veteran with a left knee anterior cruciate ligament tear; a posterior cruciate ligament tear of the left knee; a patellar tendon rupture of the left knee; and osteoarthritis of the left knee. The examiner also diagnosed functional impairment of the Veteran’s left knee with left knee joint pain on movement, occasional flaring, and weight bearing pain. Left knee flexion was limited to 90 degrees with left knee extension limited to 0 degrees. Regarding the Veteran’s functional and occupational impairment, the examiner noted that the Veteran cannot stand or walk for long periods of time and can only perform light physical and sedentary task. The examiner noted that there is no change in the Veteran’s already established prior VA diagnosis. The Veteran’s 20 percent evaluation was maintained as there is cartilage, semilunar, dislocated, with frequent episodes of “locking”, pain, and effusion into the joint with flexion. In the Veteran’s most recent September 2020 VA knee examination, the examiner diagnosed the Veteran with a left knee meniscal tear post/anterior cruciate ligament tear and osteoarthritis status post-surgery meniscectomy with arthritis. The Veteran reported severe flare-ups and functional loss in the left knee joint in the form of not being able to walk without pain. Initial left knee range of motion measurement was noted as normal with flexion at 0 to 60 degrees with extension at 60 to 0 degrees with evidence of localized tenderness, pain on palpitation, with weight bearing pain and crepitus diagnosed. Repetitive use of motion over time diagnosed flexion at 0 to 50 degrees with extension at 50 to 0 degrees. The examiner diagnosed the Veteran as negative for left knee swelling, ankylosis, atrophy, weight-bearing pain, and no evidence of subluxation, or joint instability. The Veteran reported the use of a cane constantly as an assistive device with x-ray findings of degenerative arthritis in his left knee. Concerning functional and occupational limitations, the examiner noted that the Veteran’s left knee disorder prevents him from kneeling, squatting, running, climbing, or prolonged sitting. The Veteran already has the highest evaluation allowed under the law of 20 percent under diagnostic code 5258. Diagnostic codes 5260 and 5261 are not for application as the Veteran’s flexion was limited to 60 degrees and his extension was limited to 0 degrees. No compensable limitation of motion was found on examination to warrant a separate or increased evaluation. The provisions of 38C.F.R. §4.40 and § 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown and Mitchell v. Shinseki, have been considered and are not warranted. The foregoing summary of the treatment record for a left knee post-operative left medial meniscectomy with arthritis disorder and the explanation of the method by which disability ratings are determined offer no possibility for an increased evaluation. The Board has reviewed and carefully considered the Veteran’s lay statements and hearing testimony asserting that the severity of his left knee disorder has increased. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a left knee disorder, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In summation, the Board finds that the Veteran’s left knee disorder symptoms are manifest by no more than cartilage, semilunar, dislocated, with frequent episodes of “locking”, pain, and effusion into the joint with flexion. The current diagnosis of the Veteran’s left knee disability more closely warrants the already assigned 20 percent evaluation. As noted above, there is no compensable limitation of motion diagnosed on examination to warrant a separate or increased evaluation. Moreover, instability of the left knee has already been rated separately. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for a left knee disorder. In denying such a rating, the Board finds that the evidence for this period preponderates against an increase, so the benefit of the doubt provisions is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a total disability rating based on individual unemployability prior to July 19, 2017. During the course of an appeal for a higher rating for his service connected disorders, the Veteran asserted that prior to July 19, 2017, his service connected disorders rendered him unable to secure and maintain substantially gainful employment. Review of the records reveals that the Veteran has been unemployed and disabled by SSA since April 18, 1994, at least in large part, for a non-service connected mental disorder. Evidence of the claims file reveals that the Veteran was later employed as a collections officer from around August 2000 to August 2009 when he reports that his service connected disorders rendered him unemployable. Prior to July 19, 2017, the Veteran was service connected for the following disorders: left knee meniscal tear with instability at 10 percent; left knee meniscal tear with meniscotomy with arthritis at 20 percent; right knee meniscal tear with instability at 10 percent; right knee meniscal tear with osteoarthritis at 10 percent. As the Veteran does not have a single service connected disability ratable at least at 60 percent or more, and there are not sufficient additional service connected disabilities to bring the combined rating to 70, he did not meet the schedular requirements for consideration of individual unemployability prior to July 19, 2017. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2020). As noted, the matter was referred to the Director of the Compensation Service for extraschedular consideration. It was concluded that an extraschedular TDIU was not warranted. This finding is evidence the Board may consider, but it is not binding on the Board. In a March 1995 VA knee examination, the Veteran complained of knee stiffness in the cold. The examiner diagnosed the Veteran with status post medial meniscal tear, medial collateral ligament instability, and the residuals of Osgood-Schlatter disease. In an April 2003 VA knee examination, the examiner diagnosed the Veteran with postoperative left knee medial meniscectomy. Concerning functional and occupational limitations, the examiner noted that the Veteran should avoid prolonged walking, standing, crouching, kneeling, stooping, and climbing. In a December 2003 VA knee examination, the examiner diagnosed the Veteran with status post left medial meniscectomy. The examiner noted that the Veteran’s diagnosis should be changed to status post left medial meniscectomy with arthritis. Concerning functional and occupational limitations, the examiner noted that the Veteran in his usual occupation worked as a loan officer and should avoid activities involving standing, walking, frequent kneeling, and crouching. In a September 2005 VA knee examination, the examiner diagnosed the Veteran with left medial meniscectomy with arthritis. Concerning functional and occupational limitations, the examiner noted that the Veteran should avoid very heavy lifting and frequent postural limitations of kneeling, crouching, crawling, climbing, and the squatting, due to the condition of his knees. In an October 2013 VA knee examination, the examiner diagnosed the Veteran with knee derangement bilaterally, osteoarthritis bilaterally, and Osgood-Schlatter disease of the left knee. Concerning functional and occupational limitations, the examiner noted that the Veteran’s knee disorders impair his ability to perform work related task such as sitting, standing, walking, squatting, and climbing stairs. The examiner opined that the Veteran is unable to maintain substantially gainful employment. The Board reviewed findings from the Social Security Administration (SSA) that considered the Veteran disabled from April 18, 1994 for his non-service connected mental disorders. The above evidence reflects that the Veteran’s service connected disabilities alone do not render the Veteran unable to obtain and maintain substantially gainful employment prior to July 19, 2017. Importantly, the Board emphasizes that it is not bound by SSA disability findings when considering VA benefits, including entitlement to a TDIU. Although the Veteran claims that his service-connected disabilities prevent his employment prior to July 19, 2017, VA examination reports have repeatedly indicated that his service connected disorders impair his ability to perform some physical work related task but does not preclude the Veteran from performing sedentary work. The Board finds that while the Veteran’s service connected disabilities render him unable to perform certain types of labor; nonetheless, the evidence of record does not show he is rendered unable to physically or mentally secure or follow substantially gainful employment as a result of his service connected disabilities prior to July 19, 2017. As indicated in the record, the Veteran has a lengthy work history as a home loans collection agent after receiving his SSA disability benefits. Overall, the record indicates that the Veteran’s work experience is such that the impairment caused by his service-connected disabilities would not prevent him from securing and following substantially gainful employment for the time in question. The Board also reviewed and carefully considered the Veteran’s lay statements asserting that the severity of his service connected disorders warrants TDIU prior to July 19, 2017. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to TDIU as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lastly, the Board has determined that nothing suggests symptoms outside the norm for rating the service connected disorders. Moreover, prior to July 19, 2017 the evidence of record does not reveal that the Veteran presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization due to his service connected disorder so as to render impractical the application of extra-schedular consideration for his service connected disabilities. Although the Veteran has been rendered unable to obtain or maintain substantially gainful employment, this is primarily due to his non-service connected mental disabilities and not his service connected disabilities.   After a full review of the record, the Board finds that the evidence is against the Veteran’s claim for TDIU prior to July 19, 2017. As discussed above, the pertinent evidence of record does not demonstrate that the Veteran’s service connected disabilities, alone, are of sufficient severity to render him unable to secure or follow substantially gainful employment at any time during this appeal period. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris, 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.