Citation Nr: 21011008 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-25 857 DATE: February 26, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee limitation of motion is denied. Entitlement to a rating in excess of 10 percent for left knee instability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Even considering the Veteran’s pain and corresponding functional impairment, including during flare-ups, his left knee is not productive of flexion limited to 30 degrees or less or extension limited to 10 degrees. 2. The Veteran’s left knee symptoms have not been manifested by an unrepaired or failed repair of complete ligament tear causing persistent instability. 3. The preponderance of the evidence shows that the Veteran’s service-connected disabilities do not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260-61. 2. The criteria for a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, DC 5257. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1984 to June 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided sworn testimony at a hearing before the undersigned in September 2017. This matter was previously remanded by the Board in December 2017 and August 2020 decisions for further development. In the December 2017 Board decision, the Board granted a compensable 10 percent rating for left knee instability due to stress fracture of the left tibia, and a separate rating of 10 percent for left knee painful motion. In the August 2020 Board decision, the Board found that the April 2019 VA examiner did not substantially comply with the remand directives of the December 2017 Board decision, specifically addressing the adequacy of the VA examiner’s opinion concerning additional functional loss during flare-ups of musculoskeletal disability complying with Sharp v. Shulkin, 29 Vet. App. 26 (2017), pursuant to Deluca v. Brown, 8 Vet. App. 202 (1995). The Board emphasized that in Sharp, the Court held that the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” As such, the examiner’s explanation that she was unable estimate the Veteran’s limitation of motion during flare-ups and on repeated use rendered the examination report not adequate for rating purposes. Therefore, the claims were remanded to obtain new VA examination for the Veteran’s knee and lower leg disabilities. The Veteran’s claim for TDIU was also remanded, as it is inextricably intertwined with the above-discussed increased rating claims. Harris v. Derwinski,1 Vet. App. 180, 183 (1991). The Veteran testified at his September 2017 Board hearing that he was not working due to his service-connected disabilities. In September 2018 the RO asked the Veteran to send a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The VA did not receive a completed VA Form 21-8940 from the Veteran. The Veteran was advised that failing to complete and submit this form may lead to the denial of this benefit. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. 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. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran’s disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 1. Entitlement to a rating in excess of 10 percent for left knee limitation of motion The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected left tibia stress fracture with limitation of motion. The Veteran’s left knee limitation of motion is rated under Diagnostic Code(DC) 5260 for limitation of flexion and Diagnostic Code 5261 for limitation of extension. In the August 2020 Board decision, the claim was remanded to afford the Veteran a VA examination that complies with Sharp and Correia. Additionally, the evidence showed these disabilities may have worsened since the prior VA examination and Veteran testified at his September 2017 hearing that his disabilities have worsened. Under DC 5260, where limitation of flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a , DC 5261, limitation of extension of the leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. The Veteran was provided the VA examination in August 2020 for his left knee. The Veteran reported continued and constant pain in the left knee, chronic acing of the tibia and left knee pain after repeated activity and constant use of a brace as an assistive device. The Veteran reported flare-ups of the left knee, losing approximately 50 percent range of motion after flare-ups, and losing 20 percent range of motion after repetitive activity. Initial range of motion measurements upon examination showed left knee flexion limited to 70 degrees, with functional loss due to pain limiting use. There was no evidence of pain with weight bearing, and objective evidence of localized tenderness and pain on the knees tender with palpation. There is no evidence of crepitus. The Veteran did not perform repetitive use over time testing. While the examination was not conducted during a flare-up, the examiner noted pain significantly limited functional ability during flare-ups and estimated range of motion during flare-ups to be limited to 35 degrees flexion. Muscle strength testing showed normal strength in the left knee and Veteran did not have muscle atrophy. No ankylosis was noted. The Veteran had a left knee stress fracture which did affect range of motion of the knee. The Veteran’s functional impact due to his knee disability limits him from significant physical labor, but there is no restriction to physical labor of a moderate nature, light office work, or sedentary employment. Additionally, the Veteran’s range of motion for limitation of extension for the left knee was noted to be limited to 70 degrees. Under DC 5261, which provides ratings under limitation of extension, the examination results do not result in a disability picture that acquiesces with a compensable rating. The Board finds that the preponderance of the evidence is against a finding the Veteran is entitled to a rating in excess of 10 percent for limitation of motion for his left knee. Under DC 5260, to warrant a rating in excess of 10 percent, extension must be limited to 30 degrees or less. At no time during the appeal period has the Veteran’s knee been limited to 30 degrees flexion or less. A higher evaluation under DC 5260 of 20 percent is not warranted unless the record shows leg flexion which is limited to 30 degrees. Even considering the Veteran’s reported functional limitations (e.g., left knee pain, requires use of knee brace, chronic aching of the tibia and pain limiting range of motion after repeated activity), the Board finds that the preponderance of the evidence is against a finding the Veteran’s left knee disability warrants an increased rating for limitation of motion. A rating in excess of 10 percent is not warranted. 2. Entitlement to a rating in excess of 10 percent for left knee instability The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected left tibia stress fracture with instability. The Veteran’s left knee instability is rated under Diagnostic Code (DC) 5257 for slight subluxation or lateral instability. In the August 2020 Board decision, the claim was remanded to afford the Veteran a VA examination that complies with Sharp and Correia. Additionally, the evidence showed these disabilities may have worsened since the prior VA examination and Veteran testified at his September 2017 hearing that his disabilities have worsened. Under the former VA regulations, under 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability was rated as 10 percent disabling, moderate recurrent subluxation or lateral instability rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warranted a 30 percent rating. The terms “mild,” “moderate” and “severe” were not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board was to evaluate all of the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. Pursuant to the revised regulations, effective February 7, 2021, under 38 C.F.R. § 4.71a, DC 5257 under recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation; a 20 percent rating is warranted for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation; and a 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. The Veteran was provided the VA examination in August 2020 for his knee. The Veteran reported continued and constant pain in the left knee, chronic acing of the tibia and left knee pain after repeated activity and constant use of a brace as an assistive device. The Veteran reported flare-ups of the left knee. Upon examination, the Veteran was found to have no recurrent subluxation or lateral instability in either knee; a history of recurrent effusion was found as Veteran described recurrent swelling while none was noted upon examination. Joint instability was not found upon testing. There was no evidence of pain with weight bearing, and objective evidence of localized tenderness and pain on palpation was noted on both knees. There is no evidence of crepitus. Muscle strength testing showed normal strength in both knees and Veteran did not have muscle atrophy. No ankylosis was noted. The Veteran had a stress fracture of the left tibia which did affect range of motion of the knee and resulted in chronic left tibial ache. He also has constant use of knee braces. The Veteran’s functional impact due to his knee disability limits him from significant physical labor, but there is no restriction to physical labor of a moderate nature, light office work, or sedentary employment. In applying the former VA Musculoskeletal System and Muscle Injuries Schedule for Rating Disabilities, prior to February 7, 2021, the Veteran did not exhibit objective evidence of moderate recurrent instability or subluxation upon physical examination. The Board finds that the normal joint stability tests and lack of objective evidence weighs in favor of a rating for “slight” rather than “moderate” or “severe” instability or subluxation. The evidence demonstrates that the Veteran’s left knee symptoms have more nearly approximated “slight” rather than “moderate” or “severe” recurrent subluxation or lateral instability throughout the appeal period. Under the revised rating criteria, the Veteran did not exhibit objective evidence of persistent instability caused by an unrepaired or failed repair of a complete ligament tear or a sprain upon physical examination. For the purposes of determining the severity of the Veteran’s left knee instability, the Board finds that the normal joint stability tests and lack of objective evidence weighs in favor of a 10 percent rating for “sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.” Furthermore, as the evidence does not show more frequent episodes of giving way or falling as a result of left knee instability, the Veteran is prescribed bracing but is not prescribed for an assistive device, and examination did not show recurrent subluxation nor instability, the Board finds that the preponderance of the evidence is against a disability picture that more nearly approximated a 20 percent rating under DC 5257 at any point during the appeal period. As such, a rating in excess of 10 percent for left instability is not warranted. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The VA sent a letter to the Veteran in August 2020 including the VA Form 21-8940, along with instruction to complete the form and return it to the RO. No response was received from the Veteran. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and the treatment he has received for the disability(ies). The veteran is further asked to supply information about his employment, including dates when his disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. VA Form 21-8940 also requests information regarding the veteran’s employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether the veteran has attempted to obtain employment since he became too disabled to work. In the August 2020 remand, the Board acknowledged that the Veteran testified at his September 2017 Board hearing that he was not working due to his service-connected disabilities. The Board also observed that in September 2018 the RO asked the Veteran to send a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Board added that as of that time, VA has not received a completed VA Form 21-8940 from the Veteran and advised him that failing to complete and submit this form may lead to the denial of this benefit. The critical facts at this stage are clear. The Veteran has not provided the information or VA forms necessary for VA to adjudicate his claim of entitlement to a TDIU rating. Although the record contains some information regarding his employment history, the Veteran has not provided all of the information necessary to adjudicate his claim for a TDIU rating. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran’s failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran has abandoned his claim. As such, the Board finds that the appeal must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.