Citation Nr: 21014835 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-23 653 DATE: March 15, 2021 ORDER Entitlement to a disability rating in excess of 30 percent, from October 1, 2015 through February 19, 2020, for total left knee replacement, is denied. Entitlement to a disability rating in excess of 60 percent, from February 20, 2020, for total left knee replacement, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is denied. FINDINGS OF FACT 1. From October 1, 2015 through February 19, 2020, the Veteran’s total left knee replacement did not manifest in intermediate degrees of residual weakness, pain, or limitation of motion, or by chronic residuals consisting of severe painful motion or weakness in the affected extremity. 2. From February 20, 2020 forward, the relevant statutes and regulations do not provide for a schedular rating in excess of 60 percent for total left knee replacement, other than a 100 percent rating for the one-year period following implantation of prosthesis. 3. The Veteran is not unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for total left knee replacement from October 1, 2015 through February 19, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 2. The criteria for entitlement to a rating in excess of 60 percent for left total knee replacement from February 20, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from February 1972 to June 1972. Although the Veteran’s DD-214 shows that this period was active duty training (ADT), the Veteran was disabled due to an injury incurred during this period of ADT and therefore it is considered active service for VA compensation purposes. 38 U.S.C. § 101(24)(B). This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2016 decision, the Board denied entitlement the Board denied entitlement to increased ratings in excess of 10 percent prior to August 20, 2014 for left knee lateral instability and degenerative joint disease, and remanded the issue of entitlement to an increased rating in excess of 30 percent for a left total knee replacement for further development. The Veteran did not appeal the denial of increased ratings prior to August 20, 2014, and therefore that period is no longer before the Board. 38 C.F.R. § 20.1100. In a June 2018 decision, the Board denied entitlement to a rating in excess of 30 percent for service-connected total left knee replacement from October 1, 2015. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the parties filed a Joint Motion for Remand (JMR), requesting the Court vacate the June 2018 Board decision, which was granted by Order of the Court in September 2019. This case was previously remanded by the Board in December 2019 and August 2020. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In a June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s total left knee replacement to 60 percent, effective February 20, 2020. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Where there is a question as to which of two ratings shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 ; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Entitlement to increased ratings for total left knee replacement. The Veteran seeks higher ratings for his service-connected total left knee replacement. The Veteran’s service-connected total left knee replacement is rated as 30 percent disabling prior to February 20, 2020, and 60 percent disabling from February 20, 2020 under 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5055, a 100 percent rating is provided for one year following implantation of prosthesis. After one year, a minimum 30 percent rating is provided. A maximum 60 percent is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. In addition, intermediate degrees of residual weakness, pain, or limitation of motion may be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. Terms such as “slight,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence so that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104 ; 38 C.F.R. §§ 4.2, 4.6. Certain changes to the musculoskeletal rating criteria went into effect on February 7, 2021, including to the diagnostic code relevant to knee replacement. This code now provides for a 100 percent rating for four months following implementation of prosthesis or resurfacing. Additionally, at the conclusion of the 100 percent evaluation period, resurfacing is evaluated under diagnostic codes 5256 through 5262; there is no minimum evaluation for resurfacing. The Board will apply the new criteria for the period beginning February 7, 2021, if the new criteria are more beneficial to the Veteran than the prior version of the regulation. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (regulations may not have retroactive effect unless their language specifies so). Turning to the relevant evidence of record, a private treatment record reflects that the Veteran had total left knee replacement surgery on August 20, 2014. The Veteran was provided a VA examination in October 2016. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported difficulty in prolonged walking, he is unable to run and has difficulty with stairs and bending. The Veteran did not report flare-ups of the left knee. Upon examination, the Veteran was capable of flexion to 100 degrees and extension to 0 degrees. He was able to perform repetitive use testing without additional loss of range of motion. The Veteran did not have ankylosis of the left knee. The VA examiner noted that the Veteran had five out of five strength with extension and flexion and normal joint stability. The VA examiner further noted that the Veteran had intermediate degrees of residual weakness, pain or limitation of motion due to his total knee joint replacement. The Veteran was provided a VA examination in March 2020. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported his left knee disability interferes with running, jumping, walking, standing, squatting, kneeling, bending and prolonged positioning. He reported left knee flare-ups caused by walking, standing, climbing stairs, turning and twisting. Upon examination, the Veteran demonstrated left knee flexion to 90 degrees and left knee extension to 0 degrees. He was able to perform repetitive use testing without additional loss of range of motion. The VA examiner reported that with repetitive use over time and with flare-ups, the Veteran’s left knee flexion is 90 degrees and left knee extension is 0 degrees. The Veteran did not have ankylosis of the left knee. The Veteran was provided a VA examination in November 2020. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported daily aching pain and stiffness with swelling and severe pain during flare-ups. Upon examination, the Veteran demonstrated left knee flexion to 100 degrees and left knee extension to 15 degrees. He was able to perform repetitive use testing without additional loss of range of motion. The VA examiner reported that with repetitive use over time and during flare-ups the Veteran’s left knee flexion would be 90 degrees and left knee extension would be 15 degrees. The Veteran did not have ankylosis of the left knee. The Board finds that a rating in excess of 30 percent from October 1, 2015 through February 19, 2020 for the Veteran’s service-connected left knee disability is not warranted under Diagnostic Code 5055. To warrant a higher rating under Diagnostic Code 5055 from October 1, 2015, the disability would have to manifest in intermediate degrees of residual weakness, pain, or compensable limitation of motion under 38 C.F.R. § 4.71a , Diagnostic Code 5256, 5261, or 5262, or in chronic residuals consisting of severe painful motion or weakness. The evidence of record reflects that the Veteran’s service-connected left knee disability has not manifested in ankylosis. In addition, at its most severe, the disability manifested in left knee flexion limited to 100 degrees and left knee extension limited to 0 degrees. Such range of motion findings do not warrant a compensable rating under either Diagnostic Code 5261. Finally, there is no evidence nonunion of malunion of the tibia or fibula. As such, higher ratings under Diagnostic Code 5256, 5161 or 5262 as allowed under Diagnostic Code 5055 are not warranted. Furthermore, the record does not show that from October 1, 2015 to February 20, 2020 the Veteran’s service-connected left knee disability manifested in severe painful motion or weakness. At the October 2016 VA examination, the Veteran was noted to have full muscle strength in the left lower extremity, and there was no evidence of severe pain at the time. Treatment do not reflect any left lower extremity weakness or severe pain associated with the Veteran’s left total knee replacement. Accordingly, the record does not show that a rating in excess of 30 percent was warranted for the service-connected left knee disability from October 1, 2015 to February 20, 2020. As such, the record shows that, from October 1, 2015 to February 20, 2020, the service-connected left knee disability did not manifest functional impairment such that a rating in excess of 30 percent was warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5055, 5256, 5261, or 5262. Since February 20, 2020, the Veteran has been in receipt of a 60 percent rating for the service-connected left knee disability under 38 C.F.R. § 4.71a, Diagnostic Code 5055. Diagnostic Code 5055 does not provide for a schedular rating in excess of 60 percent, other than a 100 percent rating for the one-year period following implantation of prosthesis prior to February 7, 2021 or the four months following implantation of prosthesis or resurfacing from February 7, 2021. Therefore, there is no basis in the law for awarding a schedular rating in excess of 60 percent for the disability under Diagnostic Code 5055. While left knee extension limited to 15 degrees may be held to warrant a 20 percent rating under Diagnostic Code 5261 with resolution of doubt in the Veteran’s favor, such rating would not be higher than the currently assigned 60 percent rating for the service-connected left knee disability. In determining the appropriate ratings for the Veteran’s service-connected left knee disability throughout the relevant rating period, the Board has considered whether the Veteran was entitled to higher or additional ratings under the other criteria for rating disabilities of the knee and leg. In this case, 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262, and 5263 are not for consideration because the record does not reflect that the Veteran had ankylosis of the left knee, locking, impairment of the tibia and fibula associated with the service-connected left knee disability, or genu recurvatum of the left knee at any time during the rating period. The Board has also considered whether the record shows that the Veteran was entitled to higher ratings based on additional functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, 8 Vet. App. 202, Burton v. Shinseki, 25 Vet. App. 1 (2011). At the November 2020 VA examination, the Veteran did not have any decreased range-of-motion after repetitive use testing. The VA examiner opined that with repetitive use over time the Veteran’s left knee flexion would 90 degrees and left knee extension would be 15 degrees. As such, the Veteran’s service-connected left knee disability did not manifest to a severity more closely approximating that contemplated by the higher rating criteria. Therefore, higher ratings were not warranted. See 38 C.F.R. §§ 4.40, 4.45, and 4.59, and DeLuca, 8 Vet. App. 202. At the November 2020 VA examination, the Veteran reported flare-ups that cause a decreased range-of-motion. However, there is no indication in the record that the Veteran was additionally limited by pain, fatigability, incoordination, pain on movement, or weakness during flare-ups or on repetitive use over time such that higher ratings for the service-connected right knee disability were warranted at any time during the rating period. The Board finds that the Veteran’s pain and any functional loss are encompassed by the ratings provided previously and herein under Diagnostic Code 5055 for the service-connected left knee disability. Therefore, higher ratings were not warranted at any time during the rating period under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, and DeLuca, 8 Vet. App. 202. In summary, the record does not show that the Veteran was entitled to a higher or additional ratings for the service-connected left knee disability during the relevant rating periods. To the extent the Veteran seeks ratings for the service-connected left knee disability in addition to or higher than those assigned previously and assigned herein, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a TDIU is denied. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “Substantially gainful employment” contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Board notes that the Veteran does not meet the rating criteria for a schedular TDIU for the entire period on appeal, even when treating his bilateral knee disabilities as a single disability on the basis that they affect the same body system. 38 C.F.R. § 4.16(a). However, the ultimate question in a claim for a TDIU, whether on a schedular or extraschedular basis, is whether the Veteran is unable to gain or maintain employment due to service connected disabilities. As such, the Board will consider whether the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation during that period. 38 C.F.R. § 4.16(b). In a July 2020 VA Form 21-8940, the Veteran reported that he last worked full-time in October 1995. However, he also reported that he worked 40 hours a week as a painter from January 1997 to January 2016. The Veteran reported that he has a high school diploma with no additional education or training and that due to his service-connected bilateral knee disability he is unable to maintain his painting business. A February 2020 VA examiner noted that the Veteran’s bilateral knee disability interferes with running, jumping, walking, squatting, kneeling, bending and prolonged positioning. The VA examiner noted that the Veteran cannot perform strenuous activities due to his limitations and can perform sedentary activities. A November 2020 VA examiner noted the Veteran has difficulty with prolonged walking or standing. The VA examiner noted that the Veteran’s bilateral knee disability has no impact on sedentary work. In a September 2020 statement, the Veteran reported that he receives Social Security Administration (SSA) benefits due to his nonservice-connected bi-polar disorder. VA attempted to obtain the SSA records, but were informed in September 2020 that the records had been destroyed. 38 C.F.R. § 3.159(c)(2). In view of the above, the Board finds that, during the relevant period the record shows that due to his service-connected disabilities the Veteran was limited to work that is performed mostly in a sitting position but allows for standing at times and that requires no more than 2 hours of standing and/or walking in an 8-hour workday. With such limitations, the Veteran may not be able to perform his prior work as a painter. However, he would be able to perform any number of sedentary jobs, such as sorting work, inspection work and assembly work, which do not involve exertional activities or postural activities beyond the Veteran’s residual functional capacity in view of his service-connected disabilities during the relevant period. In that regard, the Board notes that the term “sedentary” is defined for purposes of this decision as work that requires no more than 2 hours of standing and/or walking in an 8-hour workday. In determining whether the Veteran is entitled to a TDIU during the relevant period the Board has also considered the Veteran’s level of education and previous work experience. 38 C.F.R. § 4.16. The Veteran has indicated that he has a high school education. The Board finds that the Veteran’s education level is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as sorting, inspection or assembly work. The Board finds that although the Veteran may no longer be able to perform his past work, his work history would not have prevented him from transitioning to an unskilled or semi-skilled sedentary occupation, or from securing or following an unskilled or semi-skilled sedentary occupation, which do not require special training and can be learned on the job site. The Board does not doubt the Veteran’s reports that his service-connected disabilities limit his ability to stand and walk. In addition, the Board acknowledges that the Veteran’s nonservice-connected disabilities, to include bi-polar disorder, may further limit his functioning such that he is unable to secure or follow a substantially gainful occupation. However, his nonservice-connected disabilities are not for consideration in determining whether he is entitled to a TDIU. See 38 C.F.R. § 4.16. When only his service-connected disabilities are considered, the Veteran is essentially limited to sedentary work as defined above. With such remaining functional capacity, the Veteran would be able to perform the duties required in sedentary occupations. As such, the evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities at any time during the relevant period. The preponderance of the evidence is against a finding of entitlement to a TDIU, the doctrine of reasonable doubt is not for application, and the appeal must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.