Citation Nr: 21014181 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-01 249 DATE: March 11, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right knee disability is denied. Entitlement to a rating in excess of 10 percent for a left knee disability is denied. Entitlement to a separate 10 percent rating, but not higher, for a left knee disability, based on genu recurvatum of the left knee pursuant to Diagnostic Code 5263, as of January 12, 2017, but not earlier, is granted. REMANDED Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) prior to December 5, 2017, is remanded. FINDINGS OF FACT 1. A right knee disability was manifested by pain and discomfort; it has not been manifested by flexion limited to 45 degrees or less for an objectively sustained period, extension limited to 10 degrees or greater for an objectively sustained period, ankylosis, evidence of recurrent subluxation, lateral instability, impairment of the tibia and fibula, genu recurvatum, or effusion. 2. A left knee disability was manifested by pain and discomfort; it has not been manifested by flexion limited to 45 degrees or less for an objectively sustained period, extension limited to 10 degrees or greater for an objectively sustained period, ankylosis, evidence of recurrent subluxation, lateral instability, impairment of the tibia and fibula, or effusion. 3. Effective January 12, 2017, the evidence of record shows genu recurvatum of the left knee. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5256-5263. 2. The criteria for entitlement to a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5256-5263. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate 10 percent rating, but not higher, for left knee genu recurvatum, effective January 12, 2017, but not earlier, have been met.   38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1983 to December 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pasay City, Philippines. In April 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In January 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. The Board acknowledges that the Veteran is also seeking entitlement to a rating in excess of 50 percent for sleep apnea with asthma and chronic bronchitis. In an August 2019 statement of the case, the RO denied entitlement to an increased rating for sleep apnea. In October 2019, the Veteran submitted an Appeal to Board of Veterans’ Appeal, VA Form 9, and requested a Board Hearing. The Veteran is now awaiting a hearing for the increased rating for sleep apnea claim. Therefore, that claim is not ripe for adjudication by the Board at the current time and is subject to adjudication in a future decision. Increased Rating 1. Entitlement to a rating in excess of 10 percent disabling for a right knee disability. 2. Entitlement to a rating in excess of 10 percent disabling for a left knee disability. Disability ratings are based on VA’s Schedule for Rating Disabilities.  38 C.F.R. Part 4.  Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability.  The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability.  38 U.S.C. § 1155.  A rating is assigned by comparing the extent to which a service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the symptomatology, with criteria established for the percentage ratings.  38 U.S.C. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the rating may accurately compensate the elements of disability present.  38 C.F.R. § 4.2.  If two ratings are potentially applicable, the higher rating 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.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another.  If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran’s favor, and the claim should be granted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  If the preponderance of the evidence is against the claim, the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint.  38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements.  In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  38 C.F.R. § 4.45.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  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.  The rating of the same disability under different diagnostic codes, known as pyramiding, must be avoided.  However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994).  Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion.  38 C.F.R. § 4.71a, Plate II.  Under Diagnostic Code 5256, a 40 percent rating is warranted for ankylosis of the knee in flexion between 10 degrees and 20 degrees.  A 50 percent rating is warranted for ankylosis in flexion between 20 degrees and 45 degrees.  A 60 percent rating is warranted for extremity unfavorable ankylosis in flexion at an angle of 45 degrees or more.  38 C.F.R. § 4.71a, Diagnostic Code 5256.  Diagnostic Code 5257 provides that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of a knee.  A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability.  A 30 percent rating is warranted for severe knee impairment with recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  Subluxation of the patella is the incomplete or partial dislocation of the knee cap.  Rykhus v. Brown, 6 Vet. App. 354 (1993).  Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage.   38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Under Diagnostic Code 5260, limitation of flexion of the knee is rated 10 percent for flexion limited to 45 degrees.  A 20 percent rating is assigned for flexion limited to 30 degrees.  A 30 percent rating is assigned for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  Under Diagnostic Code 5261, limitation of extension of the knee is rated 10 percent for extension limited to 10 degrees.  A 20 percent rating is assigned for extension limited to 15 degrees.  A 30 percent rating is assigned for extension limited to 20 degrees.  A 40 percent rating is assigned for extension limited to 30 degrees.  A 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.  Pursuant to Diagnostic Code 5262, a 30 percent rating is warranted when there is malunion of the tibia and fibula, with marked knee or ankle disability.  A schedular maximum 40 percent rating is warranted when there is nonunion of the tibia and fibula, with loose motion requiring a brace.  38 C.F.R. § 4.71a, Diagnostic Code 5262.  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 decisions are equitable and just.  38 C.F.R. § 4.6.  Separate ratings may be assigned for compensable limitation of both flexion and extension, or for limitation of motion and instability or subluxation of the knee, or meniscal pathology.  However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating.  38 C.F.R. § 4.14; VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991).  Diagnostic Code 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.  38 C.F.R. § 4.71a.  When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is generally for application.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  A rating for arthritis cannot be combined with a rating based on limitation of motion of the same joint.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  The Veteran is currently assigned a 10 percent rating for degenerative arthritis of the left knee with meniscal tear effective January 1, 2004, pursuant to Diagnostic Code 5003-5260. The Veteran is currently assigned a 10 percent rating for degenerative arthritis of the right knee effective January 1, 2004, pursuant to Diagnostic Code 5003-5260. The Veteran asserts that the left and right knee disabilities are more severe than that represented by the assigned ratings. At an April 2016 VA examination, the Veteran was noted as having right and left knee flexion to, at worst, 110 degrees and extension to 0 degrees. The Veteran was not noted as having muscle atrophy, ankylosis, joint instability, or recurrent patellar dislocation in either knee. The Veteran was noted as having a left knee meniscus condition that was manifested by frequent episodes of joint pain. In September 2001, the Veteran underwent a partial left knee arthroscopic meniscectomy. The Veteran was noted as using occasionally using a knee support to aid in normal mode of locomotion. Diagnostic testing found bilateral degenerative arthritis. The knee conditions were found to have mild to moderate impact on the Veteran’s ability to do prolonged walking, standing, and squatting. The knee conditions were also found to severely impact the Veteran’s ability to run. A January 2017 orthopedic outpatient consultation notes the Veteran experiencing left knee crepitus and genu varus deformity on the left side. At an April 2018 Board hearing, the Veteran reported difficulty standing or walking for long periods of time. The Veteran stated that he used knee sleeves to aid with pain. The Veteran did not report experiencing knee instability. At a September 2020 VA examination, the Veteran was noted as having right knee flexion to, at worst, 115 degrees and extensions to 0 degrees; and left knee flexion to, at worst, 110 degrees and extensions to 0 degrees. The Veteran was not noted as having muscle atrophy, ankylosis, joint instability, or recurrent patellar dislocation in either knee. The Veteran was noted as having a right knee meniscus condition that was manifested by frequent episodes of joint pain; and a left knee meniscus condition that was manifested by frequent episodes of joint pain and meniscal tear. The Veteran was not noted as using any assistive devices to aid in normal mode of locomotion. Diagnostic testing found bilateral degenerative arthritis. The Veteran's movements like prolonged walking, running, prolonged standing, prolonged sitting, going up and down the stairs, carrying and transporting loads were affected and limited by the bilateral knee condition. For the period on appeal, the Board finds that the preponderance of the evidence is against the assignment any higher rating under Diagnostic Code 5260 for limitation of flexion of either knee. The evidence does not show limitation of flexion to 45 degrees in either knee, at any time during this appeal, or that any pain or other functionally limiting factors limited flexion to 45 degrees. Therefore, an increased rating for limitation of flexion is not warranted as the contemporaneous evidence of record does not warrant a rating in excess of 0 percent in either knee. The Board further finds that the preponderance of the evidence is against the assignment of a compensable rating under Diagnostic Code 5261 for limitation of extension of the right or left knee. The evidence does not show that Veteran’s left or right knee disability has been manifested by limitation of extension to 10 degrees or worse commensurate with a 10 percent rating. Therefore, a higher or separate rating for limitation of extension is not warranted as the contemporaneous evidence of record does not warrant an increased rating in either knee. The Board finds that a separate rating is not warranted for meniscal pathology pursuant to Diagnostic Codes 5258 or 5259. The evidence does not show either meniscus was fully removed. While there is evidence of tear or dislocation of the meniscus, the evidence does not show frequency episodes of locking or effusion of either knee joint. To the extent that the meniscal pathology results in pain or limitation of motion, that symptomatology has been considered in assigning ratings pursuant to Diagnostic Codes 5003-5260. To assign a separate rating for that symptom under the diagnostic criteria for meniscus impairment would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Throughout the entire appeal period, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5257 (recurrent subluxation or lateral instability), and 5262 (nonunion or malunion of the tibia and fibula) are not applicable, as the medical evidence does not show that the Veteran has those conditions in either knee. The Board further finds that Diagnostic Codes 5263 (genu recurvatum) is not applicable to the right knee disability as the medical evidence does not show that the Veteran has had that condition in the right knee during the course of the appeal. Accordingly, with a noncompensable level of limitation of motion of the knees, a 10 percent rating, but no higher, is warranted for the limitation of motion shown in each knee under Diagnostic Code 5003. In reaching the foregoing conclusions, the Board has considered the evidence of functionally limiting factors caused by limitation of motion due to painful motion, excess motion, weakened motion, fatigability, incoordination, and flare up. Deluca v. Brown, 8 Vet. App. 202 (1995). While the Veteran has shown objective evidence of pain throughout the appeal, the record does not show that his pain has resulted additional functional limitation consistent with a higher disability rating. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher or additional separate ratings for the right and left knee disabilities, other than left knee genu recurvatum which will be discussed below, based on limitation of motion and the claims for increased ratings must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to a separate 10 percent rating, but not higher, for genu recurvatum of the left knee pursuant to Diagnostic Code 5263, as of January 12, 2017. A January 2017 orthopedic outpatient consultation note shows the Veteran experiencing left knee crepitus and genu varus deformity on the left side. Therefore, resolving all benefit of the doubt in favor of the Veteran, the Board finds that Veteran is entitled to a 10 percent rating commensurate with the criteria set forth in Diagnostic Code 5263 for rating Genu recurvatum which is acquired, traumatic, and with weakness and insecurity in weight-bearing objectively demonstrated, effective January 12, 2017, the date the medical evidence of record first notes the Veteran as experiencing left knee genu recurvatum. The evidence shows weakness and insecurity beyond that used to establish the 10 percent rating for limitation of motion, which has resulted in the use of brace. Therefore, assigning a separate rating for genu recurvatum does not constitute pyramiding. A 10 percent rating is the only rating available under Diagnostic Code 5263. Therefore no higher rating under Diagnostic Code 5263 is warranted. The Board finds that the preponderance of the evidence is against the assignment of any rating higher than 10 percent or any earlier effective date for the separate rating. That is the highest schedular rating for genu recurvatum. REASONS FOR REMAND 1. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) prior to December 5, 2017 is remanded. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a); Mittleider v. West, 11 Vet. App. 181 (1998). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. I n reaching 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 (1993). 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 age or the impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. As the record currently stands, prior to December 5, 2017, the Veteran’s service-connected disabilities were sleep apnea with asthma and chronic bronchitis; maxillary sinusitis; degenerative arthritis of the left knee; degenerative arthritis of the right knee; chronic conjunctivitis; various scars; and allergic rhinitis. The Veteran first met the schedular criteria for consideration of the assignment of TDIU combined beginning on September 14, 2011, when the combined service-connected disability rating first became 70 percent. 38 C.F.R. § 4.71a. However, the Board notes that the Veteran currently has a claim regarding entitlement to a rating in excess of 50 percent for sleep apnea with asthma and chronic bronchitis in appellate status that has not been adjudicated in this decision. That claim could significantly impact a decision on the issue of entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU), therefore, the Board finds that the issues are inextricably intertwined. Specifically, because the issue of entitlement to a rating in excess of 50 percent for sleep apnea with asthma and chronic bronchitis will have a substantial effect on the merits of a claim for TDIU prior to December 5, 2017, the claim for TDIU is inextricably intertwined. Since that sleep apnea claim is in appellate status, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider that derivative claim of TDIU prior to the determination of the other claim for service connection for sleep apnea. The Board also notes that a separate rating has been assigned for genu recurvatum of the left knee that must be effectuated. Therefore, the adjudication of the TDIU claim must be deferred pending resolution of that claim. Harris v. Derwinski, Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. After resolution of the pending claim for an increased rating for sleep apnea with asthma and chronic bronchitis, and effectuation of the separate rating for left knee genu recurvatum, determine what further development is necessary to ensure that the record is adequate to decide whether the service-connected disabilities prevent the Veteran from obtaining and maintaining gainful employment prior to December 5, 2017, and arrange for any necessary development. If necessary, schedule a VA examination. If a medical examination is determined to be necessary and scheduled, the examiner must review the claims file and should note that review in the report. The examiner should examine the Veteran and describe the functional limitations and employability limitations caused by each service-connected disability, prior to December 5, 2017. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation, prior to December 5, 2017, due to the combined effects of the service-connected disabilities alone. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. If the Veteran is found unemployable due to the service-connected disabilities, the examiner should opine when the Veteran became unemployable due to the service-connected disabilities. Then, readjudicate the claim for TDIU prior to December 5, 2017. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.