Citation Nr: 21014359 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 10-28 678 DATE: March 12, 2021 ORDER A rating in excess of 10 percent for right knee synovitis and strain due to painful motion is denied. A separate 10 percent rating for right knee synovitis and strain due to symptomatic partial lateral meniscectomy is granted from September 11, 2014. A separate 30 percent rating for right knee synovitis and strain due to severe recurrent instability is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is moot and is therefore dismissed. Entitlement to special monthly compensation (SMC) based on statutory housebound status under 38 U.S.C. § 1114(s) from March 20, 2009 to September 22, 2010 and from January 1, 2011 is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability results in painful motion but has not limited the knee to 30 degrees of flexion or 15 degrees of extension. 2. Beginning September 11, 2014, the Veteran’s right knee disability resulted in symptomatic removal of the semilunar cartilage. 3. The Veteran’s right knee disability has resulted in severe recurrent instability. 4. From March 20, 2009, the Veteran has been in receipt of a combined 100 percent schedular disability rating. 5. The criteria for SMC based on statutory housebound status under 38 U.S.C. § 1114(s) have not been met. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee painful motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003. 2. Since September 11, 2014, the criteria for a separate 10 percent rating for right knee symptomatic partial meniscectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259. 3. The criteria for a 30 percent rating for severe right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. From March 20, 2009 entitlement to TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 5. From March 20, 2009 to September 22, 2010 and since January 1, 2011, the criteria for SMC at the housebound rate have not been met. 38 U.S.C. §§ 1114(s), 5103, 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to February 1990, and on active duty for training from January 31, 1991 to February 13, 1991. A Board hearing was held in November 2014. A transcript is of record. In April 2015, September 2017, and December 2019, the Board remanded the Veteran’s claims for further development. 1. Increased Rating for Right Knee The Veteran contends he is entitled to a higher rating for his service-connected right knee disability. A. Limitation of Motion The assigned Diagnostic Code 5260 suggests that the Veteran’s right knee disability is rated based on compensable limitation of flexion. 38 C.F.R. § 4.71a. A review of the evidence reflects that the right knee disability has manifested as osteoarthritis and been rated based on painful noncompensable limitation of motion, and that the Veteran’s right knee has not had compensable limitation of motion (i.e. limitation of flexion or extension) at any time during the relevant rating period. Therefore, the Diagnostic Code assigned should have been Diagnostic Code 5003, to show that the right knee with osteoarthritis is being rated based on noncompensable limitation of motion that is painful. For this reason, the Board is changing the Diagnostic Code for the right knee to 5003 to reflect the actual rating already assigned. 38 C.F.R. § 4.71a. The Veteran’s right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s right knee disability due to a limitation of motion. As demonstrated by VA treatment records, the Veteran has had flexion greater than 30 degrees throughout the appeal period. See, e.g., July 2006 VA Treatment Records; June 2009 VA Treatment Records; September 2014 VA Treatment Records; October 2015 VA Treatment Records. The Veteran has undergone several VA examinations, but none indicate the Veteran has been limited to 30 degrees of flexion or less. In June 2009 he had 90 degrees of flexion and did not report flare ups. In July 2014 he had 130 degrees of flexion and no flare ups. In July 2018 he was limited to 60 degrees of flexion and reported flare ups, but the examiner failed to provide an estimate of any additional loss, rendering the examination inadequate. In July 2019 the Veteran was even more limited and had only 50 degrees of flexion, but he did not report flare ups. Finally, in November 2020, the Veteran had normal active and passive range of motion. The examiner reported that the Veteran experienced pain and weakness after repetitive use over time and during flare ups but estimated the Veteran would still have 140 degrees of flexion. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and pain after repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation he experiences during flare ups or after repetitive use over time does not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Considering limitation of extension, there are three isolated range of motion measurements showing some limitation of extension. In July 2006, during a physical therapy evaluation, the Veteran had 11 degrees of extension. But from that date until September 2014 the Veteran had full extension. As discussed in greater detail below, the Veteran underwent a partial lateral meniscectomy on September 11, 2014. On September 2, in a pre-operative evaluation, the Veteran had 5 degrees of extension. Then on September 24, only two weeks after the arthroscopy, he was limited to 20 degrees of extension. However, in essentially every other objective range of motion measurement in treatment records and VA examination reports the Veteran had full extension. Given that the great majority of the objective medical evidence shows full extension, the Board finds that the isolated measurements of limited extension do not support assigning a separate rating for limitation of extension. 38 C.F.R. § 4.71a, Diagnostic Code 5261. B. Instability Diagnostic Code 5257 provides ratings for other knee impairments with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6.   Objective medical evidence of knee instability is not required, and objective medical evidence is not categorically more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347.  The Veteran has made objective reports of his knee giving way without warning, which are supported by his spouse’s testimony. See July 2014 Veteran Statement; November 2014 Hearing Transcript, at 15, 18. The Veteran’s spouse testified that the falls occur frequently, and the Veteran constantly needed to wear braces and use a cane to walk. Id. The Veteran’s medical treatment records further support his assertions of objective instability and frequent episodes of giving-way. See, e.g., May 2009 VA Treatment Record; May 2017 VA Treatment Record; September 2014 VA Treatment Record; July 2018 VA Examination Report. And VA examination reports documented the Veteran’s use of a knee brace and a cane for ambulation. See July 2014 VA Examination Report; July 2018 VA Examination Report; July 2019 VA Examination Report; November 2020 VA Examination Report. But contra to the Veteran’s assertions, objective testing has consistently shown normal stability. Id. Despite the findings of the objective testing, the Board finds that the Veteran’s subjective reports of frequent falls due to his knee giving way and the constant need to use supportive devices most nearly approximates severe recurrent instability and a separate 30 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5257. C. Semilunar Cartilage Prior to September 2014, the Veteran’s symptoms did not meet the criteria for a separate rating under Diagnostic Code 5258. The Veteran reported pain throughout both appeal periods, but the medical evidence does not include any a description of a meniscal condition prior to September 2014. A May 2009 MRI, included in private treatment records, showed no meniscal tears. Additionally, while the Veteran reported daily locking during a June 2009 VA examination, there is no indication that he experienced frequent episodes of effusion into the joint. VA treatment records in March 2013 and May 13, 2014 did not show any tears of the meniscus, although the May 13, 2014 MRI did show mild effusion. On May 20, 2014, the Veteran was given a diagnosis of medial and lateral meniscal tears with occasional locking. However, the Veterans symptoms still did not meet the criteria for a separate rating under Diagnostic Code 5258. The Veteran only had occasional, not frequent, episodes of locking and there is only a single indication of small effusion. As such, a separate rating is not warranted. On September 11, 2014, the Veteran underwent a partial lateral meniscectomy. Following the meniscectomy, the Veteran continued to experience locking and effusion. See, e.g., July 2018 VA Examination Report; July 2019 VA Examination Report; November 2020 VA Examination report. Therefore, a 10 percent rating pursuant to Diagnostic Code 5259 is warranted from September 11, 2014. D. Additional Conditions   The Board has also considered whether an additional or higher rating would be available under other diagnostic codes pertaining to the knee. There is no indication of ankylosis; no impairment of the tibia or fibula; and no diagnosis of genu recurvatum. As such, there is no basis for a separate evaluation under Diagnostic Codes 5256, 5262, or 5263. Finally, VA promulgated a final rule amending the regulations governing the rating musculoskeletal disabilities, including the knees, while the Veteran’s claim was pending. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). The Board must evaluate the Veteran’s claim under both sets of schedular criteria beginning on the effective date of the amendment, applying the most beneficial to the Veteran. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). The Board has considered the applicable post-amendment Diagnostic Codes and finds that the pre-amendment regulations are more advantageous. In this case, only the amendments to Diagnostic Code 5257 have a potential effect on the Veteran’s disability rating. The amended rating criteria have eliminated the mild, moderate, and severe designations in favor of more specific mechanical formula for evaluating instability, but still provides a maximum 30 percent rating. As the Board has awarded the maximum available rating under the pre-amendment Diagnostic Code, consideration under the amended regulations offers no advantage to the Veteran. 2. TDIU and SMC for the Periods from March 20, 2009 to September 22, 2010 and Since January 1, 2011 The Veteran has had a combined schedular rating of 100 percent for the entirety of both periods on appeal. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Such a scenario is not present here. The Veteran’s 100 percent disability rating is based on a combination of his service-connected disabilities and no single service-connected disability is rated as 100 percent disabling. Although TDIU may satisfy the “rated as total” element of section 1114(s), TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of “a service-connected disability” because that requirement must be met by a single disability. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). However, in this case the Veteran has asserted that a combination of his service-connected disabilities – specifically his right knee disability, back disability, and radicular pain – has resulted in his unemployability, not a single disability. See, e.g., July 2019 VA Form 21-8940; November 2014 hearing transcript, at 23-26. Likewise, the medical evidence of record indicates that the Veteran cannot work due to a combination of his disabilities. VA examiners in July 2018, July 2019, and November 2020 opined that the Veteran’s knees would limit or prevent kneeling, squatting, standing, and ambulating and the same July 2018 and July 2019 VA examiners opined that the Veteran’s back disability resulted in functional impairments that would limit physical employment. In a July 2018 Disability Benefits Questionnaire, Dr. M.D opined that due to his back disability the Veteran could not stand for more than five minutes and extended sitting caused severe pain and radicular symptoms, while his ability to walk was impaired by his knee disability, requiring the Veteran to use crutches due to pain and weakness. Since leaving military service, the Veteran has worked in primarily physically demanding jobs, such as painting and running electrical wire and inspecting vehicles for a fire truck manufacturing company. See, e.g., April 2019 VA Psychiatric Examination. Therefore, considering the holding in Ray v. Wilkie, the evidence demonstrates that a combination of disabilities would prevent him from obtaining and retaining substantial gainful employment. 31 Vet. App. 58 (2019). However, because the Veteran has already been assigned a combined total disability rating, the issue of entitlement to TDIU is moot. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine, 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.