Citation Nr: 21009346 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-28 361 DATE: February 22, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for limitation of left knee flexion is denied. Entitlement to initial rating in excess of 10 percent for limitation of right knee flexion is denied. Entitlement to a separate rating of 10 percent but no higher for limitation of extension of the left knee is granted. Entitlement to a separate rating of 10 percent but no higher for limitation of extension of the right knee is granted. Entitlement to a separate rating of 10 percent, but no higher, for instability of the left knee is granted. Entitlement to a separate rating of 10 percent, but no higher, for instability of the right knee is granted. Entitlement to total disability rating based on individual unemployability (TDIU) prior to August 17, 2020 is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s left knee flexion is not limited to 30 degrees or less. 2. The preponderance of the evidence shows that the Veteran’s right knee flexion has not limited to 30 degrees or less throughout the entire period on appeal. 3. The evidence shows that the Veteran’s left knee extension was limited at 15 degrees. 4. The evidence shows that the Veteran’s right knee extension was limited at 15 degrees. 5. The evidence shows slight instability of the Veteran’s left and right knee disability. 6. Prior to August 17, 2020, the Veteran was not unable to secure and follow substantially gainful employment as a result of her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for initial rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5003-5260 (2019). 2. The criteria for initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5003-5260 (2019). 3. The criteria for a separate rating of 20 percent for limitation of extension of a left knee disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5003-5261 (2019). 4. The criteria for a separate rating of 20 percent for limitation of extension of a right knee disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5003-5261 (2019). 5. The criteria for a separate rating of 10 percent for instability of the left knee have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5003-5257 (2019). 6. The criteria for a separate rating of 10 percent for instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5003-5261 (2019). 7. The criteria for entitlement to a TDIU prior to August 17, 2020 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1987 to January 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. These matters were previously before the Board in November 2019. The Veteran’s increased rating claims for her knees were remanded to obtain a new VA examination. The Board further found that TDIU was raised by the record during the August 2019 Board hearing and further remanded for additional development of the TDIU claim. During the pendency of the appeal, her TDIU claim was granted in a September 2020 rating decision and assigned an effective date of August 17, 2020, the date VA received her TDIU claim. However, the issue of entitlement to a TDIU prior to August 17, 2020 remains on appeal. The Board further notes that while these issues were pending at the Board, additional VA treatment records and VA examinations were associated with her claims file following the July 2020 supplemental statement of the case (SSOC). A request for a waiver of AOJ review was also sent to the Veteran on December 2020 but no responses has been received. Although another SSOC has not been issued and a response of waiver of AOJ review has not been received, the VA medical evidence was considered in a subsequent September 2020 rating decision which re-adjudicated the Veteran’s increased rating for her bilateral knee disabilities and TDIU. She was also was notified of her appellate rights in a September 2020 notification letter. As the evidence have previously been considered in the September 2020 rating decision, it would not be prejudicial to the Veteran if the Board assumes jurisdiction of these claims at this time. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Left knee disability 2. Right knee disability The Veteran seeks an initial rating in excess of 10 percent for her left and right knee disabilities. She contends that her knees have progressively worsened since the 2015 VA examination. See August 2019 Board Hearing. She further testified that in 2015 she was able to bend a little without hearing her knees crunch. Id. Since the 2015 VA examination, she cannot bend her knees and the sound is getting worse. Id. The Veteran has been assigned a 10 percent disability rating for her left and right knee disabilities under DC 5003-5260. 38 C.F.R. § 4.71a, DC 5284. The Board notes that the DC code assigned to the Veteran’s knees was changed from DC 5010-5260 to DC 5003-5260 to accurately reflect her disability. It is further noted that hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis of the rating assigned; the additional code is shown after the hyphen. Diagnostic Code 5003 rates degenerative arthritis, including painful motion associated with the arthritis, even when there is noncompensable limitation of motion. DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved provided the limitation of motion is compensable. When limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides that a rating of 10 percent is for application for each such major joint affected by limitation of motion. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensable (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. Under certain circumstances, a knee disability may receive separate ratings based on evidence showing limitation of motion (Diagnostic Codes 5256, 5260, and 5261) or instability (Code 5257, 5262, and 5263). See VAOPGCPREC 9-2004 (September 17, 2004) and VAOPGCPREC 23-97 (July 1, 1997). As an initial matter, the Board notes that the Veteran was afforded January 2015, May 2018, February 2020, and September 2020 VA examinations. However, upon review of the VA examinations, the Board finds that the January 2015 and May 2018 VA examination are inadequate for evaluation of the Veteran’s left and right knee disabilities. Although the January 2015 VA examiner reported active range of motion (ROM) testing and pain on weight bearing, the VA examiner did not examine the Veteran’s left and right knee on passive ROM or on non-weightbearing. As such, the January 2015 VA examination does not comply with the holdings under Correia. Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that VA examinations must include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint, or an explanation as to why such testing is not warranted or not possible.) The May 2018 VA examination is also inadequate because the VA examiner’s explanation for why she could not determine whether the Veteran’s pain, weakness, fatigability, or incoordination significantly limited her functional ability during repeated use over time or during a flare-up without resorting to mere speculation was based solely on the fact that the Veteran was not examined during those circumstances. The VA examiner’s explanation does not comply with the holdings under Sharp which requires that the inability to provide an opinion without resorting to speculation “reflect[s] the limitation of knowledge in the medical community at large” and not a limitation—whether based on lack of expertise, insufficient information, or unprocured testing—of the individual examiner.). Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Moreover, the VA examination is inadequate because the VA examiner did not indicate whether the Veteran experienced any additional loss in ROM during repeated use over time or during a flare-up. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, the Board finds that the remaining evidence of record does not establish that the Veteran’s left and right knee disabilities has manifested in limitation of flexion at 30 degrees or less. As noted in an August 2015 private treatment record, the Veteran’s right knee was evaluated after she fell in early May 2015 and the private doctor noted she had full ROM of the right knee with mild crepitation with ROM of the patella. No meniscal sign, heat, erythema, or swelling of the knee was noted. In a December 2017 VA physical therapy note, her active ROM for the left knee was (10) to 90 degrees and (5) to 90 for the right knee. The physical therapist noted her active ROM was limited by pain bilaterally and that she was unable to perform further testing due to active resistance and reports of pain. In an August 2018 VA treatment record, the Veteran complained of bilateral knee pain which occurred mainly with knee flexion and with stairs. She also reported that her left knee pain was greater than her right knee. Upon examination of her knees her active ROM for flexion was limited from 15 to 90 degrees with pain along the medial joint line. In a February 2020 VA examination, the Veteran’s left knee flexion was limited at 45 degrees with pain noted and her right knee flexion was limited at 50 degrees. The VA examiner noted objective evidence of localized tenderness or pain on palpation of the medial/lateral joint line and retropatellar region. She also had pain on weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss in ROM. The VA examiner further stated that pain and lack of endurance caused functional loss during repetitive use over time or during a flare-up but that it did not result in additional loss in ROM. The VA examiner also noted that there was no evidence no evidence of pain on passive ROM testing and no evidence of pain on non-weight bearing testing of the left and right knee. In a September 2020 VA examination, the Veteran reported chronic increase in severe pain and that her condition has progressed limiting her ability to walk, stand, or climb. Range of motion testing of her left and right knee revealed that her flexion was limited at 120, bilaterally, with pain noted. Objective tenderness or pain on palpation was present and noted to be of moderate severity due to her left and right knee disabilities. There was no pain on weightbearing or objective evidence of crepitus. She was able to perform the repetitive use test without additional loss in ROM bilaterally. The VA examiner further noted that while she was not examined following repeated use over time or during a flare up, the examination was consistent with her description of functional loss. The VA examiner stated that pain significantly limited her functional ability over time resulting in an additional 10-degree loss in ROM following repeated use over time or during a flare-up. There was no objective evidence of pain on non-weight bearing or additional loss in ROM during passive ROM bilaterally. Based on the foregoing medical evidence, at worst, her left knee flexion was limited at 45 degrees and her right knee flexion at 50 degrees. These findings are consistent with a 10 percent rating under DC 5260 for limitation of flexion. The Board acknowledge that the Veteran’s private and VA treatment record continuously reflect reports of pain, swelling, popping, and stiffness. Additionally, the Board acknowledge that her left and right knee disabilities has affected her ability to engage in recreational activities or to walk and stand for prolong periods of time. Even considering whether she experiences additional limitation in her left and right knee during repeated use over time or during a flare-up, it would only result in her left and right knee flexion being limited at 110 degrees. This finding still continues to support a 10 percent evaluation under DC 5260. As such, the Board finds that the objective medical evidence does not show that her left or right knee flexion has been limited at 30 degrees or less to warrant a higher rating under DC 5260. Accordingly, the Board finds that the Veteran is not entitled to an initial increased rating in excess of 10 percent based on consideration of the Diagnostic Code pertaining to limitation of flexion for her left and right knee disability. The Board has further considered whether the Veteran is entitled to additional ratings under the other diagnostic code for rating the knee and leg and finds that the she is entitled to a separate rating of 20 percent for limitation of extension for a left and right knee disability under DC 5261. Under Diagnostic Code 5261, for limitation of extension of the leg, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran’s treatment records show she complained of stiffness in her knees when sitting in October 2016. See January 2017 CAPRI. Upon examination of her knees, the VA doctor noted that she had some increased pain, bilaterally, with only a little extension of the knees. In a December 2017 VA treatment record, the Veteran reported she fell when her left knee gave out and hyperextended and scratched up her right knee. On examination, a VA doctor noted that she limps and favors the left knee which led to her right knee pain. Her active ROM testing showed her right knee was (5) to 90 degrees, limited by pain and her left knee was (10) to 90 degrees, limited by pain. The VA doctor was unable to perform further testing due to active resistance and reports of pain and noted that she had impaired bilateral knee extension ROM due to pain and guarding. The Veteran further complained of bilateral knee pain mainly with flexion during an August 2018 VA treatment record. However, upon examination, the VA doctor noted that her active ROM for extension was from 90 to 15 with pain in the medial joint line. Moreover, a September 2020 VA examiner also noted that she would experience an additional 10-degree loss in ROM following repeated use over time or during a flare-up. As the Veteran’s initial ROM for extension in the September 2020 VA examination showed no limitation, an additional loss of 10 degrees in extension would result in her left and right knee extension being limited at 10 degrees. Based on these findings, the Board finds that the Veteran’s limitation in her left and right knee extension, at most, was limited to 15 degrees throughout entire period on appeal. As such, the Board finds that a separate evaluation of 20 percent rating for her left and right knee under DC 5261 is warranted. The Board further finds that she is entitled to a separate disability rating under DC 5257 for instability of the left and right knee. Under DC 5257, a 10 percent evaluation is warranted for slight recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. A 20 percent evaluation is warranted for moderate recurrent subluxation or lateral instability. Id. A 30 percent evaluation, which is the maximum available under this diagnostic code, is warranted for severe subluxation or lateral instability. Id. The Board notes that the terms “slight,” “moderate,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. A review of the medical evidence shows that the Veteran’s VA examinations throughout the entire period on appeal does not reflect any findings of left or right knee instability. However, the Veteran’s VA treatment records has consistently noted that she uses a cane or a knee brace regularly as a normal mode of locomotion. In addition, they include several references to injuries due to knee instability. VA treatment records further indicates that she fell and twisted her right knee in August 2015. She further complained that her knees were unstable and painful with weight bearing by the end of the day and upon examination in a November 2017 VA treatment record. Upon examination of the Veteran, the November 2017 VA doctor noted that her knees were tender along the superior patella with a positive drawer test and diagnosed her with bilateral knee instability. Subsequently, in a December 2017 VA physical therapy consultation, the Veteran reported that she fell when her left knee gave out and hyperextended causing her to scratch up her right knee. Upon conclusion of the examination, the VA doctor noted that her osteoarthritis of the knees impaired her ability to use stairs, transfer, and stand or walk for a prolonged period. She also presented with impaired bilateral knee extension due to pain and guarding and impaired bilateral hip strength and bilateral knee extension strength. Based on the foregoing evidence, the Board finds that the Veteran’s left and right knee disability exhibits slight instability. As such a separate 10 percent disability rating for the Veteran’s left and right knee is warranted under DC 5257. Although her bilateral knee disabilities warrant a 10 percent rating for slight instability, the Board finds that higher evaluations for “moderate” or “severe” instability are not warranted based upon the evidence of record. Aside from the Veteran’s reports of falling and using a cane and knee brace as a normal mode of locomotion, the February 2020 and September 2020 VA examination reveals that posterior, medial, and lateral instability were all normal. She also did not have recurrent subluxation or dislocation. As such, the evidence does not suggest moderate instability. The Board has further considered whether she is entitled to a higher rating under DC 5003. However, the left and right knee is already rated 10 percent disabling, and a 10 percent rating is the maximum rating provided for arthritis of a major joint under DC 5003. As such, a rating in excess of 10 percent is not possible under Diagnostic Code 5003. The Veteran is further not entitled to a separate rating under DC 5256 as the evidence does not show that she has been diagnosed with ankylosis of the knee. Additionally, she is not entitled to a separate rating under DC 5258. A July 2015 MRI indicates that she has small joint effusion of the right knee and a February 2020 and September 2020 VA examiner noted that she had a meniscal tear. However, a February 2020 VA examiner only endorsed frequent episodes of joint effusion bilaterally and further stated that meniscal tear can cause joint pain and intermittent effusion. Additionally, while the September 2020 VA examiner stated she had a meniscal tear, there was no indication whether she experienced frequent episodes of locking, pain, or effusion into the joint. As such, the Board finds that the evidence does not support a separate rating under DC 5258. Moreover, while the Veteran has a meniscal tear of the right knee, there is no evidence that she has undergone surgery to remove the cartilage. As such, she also not entitled to a separate rating under DC 5259. The Board also finds that she is also not entitled to a separate rating under DC 5262 as there is no evidence that she has any impairment of the tibia and fibula. Moreover, she is not entitled to a separate rating under DC 5263 as the medical evidence fails to show that she has been diagnosed with genu recurvatum. In conclusion, the Board finds that the preponderance of the evidence is against assigning an initial rating in excess of 10 percent for the Veteran’s left and right knee flexion under DC 5260. In resolving doubt in favor of the Veteran, a separate rating of 20 percent, but no higher, for the Veteran’s left and right knee extension is warranted under DC 5261. Additionally, in resolving doubt in favor of the Veteran, a separate evaluation of 10 percent, but no higher, for slight instability of the left and right knee is warranted. 3. TDIU prior to August 17, 2020 The Veteran’s TDIU claim was raised by the record based on her testimony that she had to forego employment opportunities due to her inabilities to stand or walk for a prolonged period. See August 2019 Board Hearing. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of the veteran’s service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with the veteran’s education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). However, advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16 (a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Upon review of the Veteran’s claims file, the Veteran is service-connected major depressive disorder is rated 50 percent from December 14, 2016. Her service-connected right shoulder disability has been rated 20 percent from February 14, 2017. The Veteran’s right and left knee disability has been rated 10 percent since July 16, 2013. Her combined service-connected disability rating was 70 percent from September 18, 2017. In this regard, the Board concludes that the Veteran has met the schedular criteria since September 18, 2017. The Board finds that the evidence fails to show that her service-connected disabilities precluded her from obtaining or maintaining substantially gainful employment prior to August 17, 2020. Although she reported that she has been unemployed after the military during a September 2017 private examination, she also reported that she was working as a floor inspector at a hotel during the private examination. A VA 21-4192 request for employment information in connection with claim for disability benefits, also reflect that she was employed from February 2018 until February 2019 as a house keeping supervisor and front desk manager full-time until she resigned from her job and moved to Louisiana. Further, in a September 2020 VA examination, she reported that she was working full-time as a material handler in the Seattle area since April 2020 and taking college courses. While the Veteran’s medical treatment records reflects numerous complaints and treatment for her knees and a February 2020 VA examiner noted that her bilateral knee disability affects her ability to work, the Veteran was able to maintain substantially gainful employment throughout the period prior to August 17, 2020. The Board acknowledge the Veteran’s testimony that her bilateral knee disabilities has affected her ability to hold a job and that she had to forgo employment opportunities. Moreover, the Board has considered the Veteran’s previous occupation as a medical specialist in the military and her efforts to obtain an associated degree in nursing. However, the evidences do not establish that she is unemployable due to her service-connected disabilities. Instead, the evidence shows that she quit her previous job because she was moving. Notably, the evidence shows that she is still currently employed. As such, the Board finds that the Veteran’s service-connected disabilities has not precluded her from obtaining or maintaining substantially gainful employment prior to August 17, 2020. Although the Veteran’s September 2020 VA examination indicates that she is still employed full-time, in a September 2020 rating decision the RO found that her service-connected disabilities would preclude the her from obtaining and maintaining substantially gainful employment. As such, she was granted TDIU effective August 17, 2020. As this is a finding favorable to the Veteran, the Board will not disturb this finding. (Continued on the next page)   Based on the foregoing reasons, the Board finds that the preponderance of the evidence is against a finding that she is entitled to a TDIU prior to August 17, 2020 and the claim must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.