Citation Nr: 21015385 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-30 665 DATE: March 17, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for the Veteran’s service-connected left knee flexion for the period prior to May 2, 2019 is denied. Entitlement to a disability rating in excess of 50 percent for the Veteran’s service-connected left knee extension for the period prior to May 2, 2019, is denied. Entitlement to a disability rating in excess of 10 percent for the Veteran’s service-connected right knee limitation of extension for the period prior to December 19, 2019, and in excess of 40 percent thereafter is denied. Entitlement to a compensable disability rating for the Veteran’s service-connected right knee limitation of flexion is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period on appeal prior to May 2, 2019, is granted. FINDINGS OF FACT 1. For the relevant period on appeal, the Veteran’s left knee disability is not manifested by ankylosis, subluxation, lateral instability, impairment of the tibia or fibula, or genu recurvatum. 2. For the relevant period on appeal, the Veteran’s left knee limitation of extension most closely approximates the maximum 50 percent schedular rating for knee extension. The limitation of flexion most closely approximates the 20 percent disability criteria. 3. For the relevant period on appeal, the Veteran’s right knee disability is not manifested by ankylosis, subluxation, lateral instability, impairment of the tibia or fibula, or genu recurvatum. 4. For the period prior to December 19, 2019, the Veteran’s right knee limitation of extension more closely approximates the 10 percent criteria; and for the period thereafter the Veteran’s limitation of extension more closely approximates the 40 percent criteria. The Veteran’s right knee limitation of flexion does not rise to compensable levels. 5. Throughout the period of the claim, the evidence of the record indicates that the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 20 percent for service-connected left knee flexion for the period prior to May 2, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for establishing entitlement to a disability rating in excess of 50 percent for service-connected left knee extension for the period prior to May 2, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 3. The criteria for establishing entitlement to a disability rating in excess of 10 percent for the Veteran’s service-connected right knee limitation of extension for the period prior to December 19, 2019, and in excess of 40 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 4. The criteria for establishing entitlement to a compensable disability rating for service-connected right knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 5. The criteria for establishing entitlement to a TDIU for the period on appeal prior to May 2, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 3.401, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1962 to October 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in December 2020 it was remanded for additional development. Specifically, the RO was instructed to obtain the Veteran’s pertinent Social Security Administration (SSA) records. A December 2020 notice was obtained that the Veteran’s SSA records had been destroyed and further efforts to locate them would be futile. As such, the Board finds that the AOJ substantially complied with the directives in the December 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran’s claims. Bilateral Knees—Legal Criteria Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), instability and recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Codes 5258 and 5259 evaluate impairment of the semilunar cartilage. Diagnostic Code 5256 evaluates ankylosis of the knee, Diagnostic Code 5262 evaluates impairment of the tibia and fibula, and Diagnostic Code 5263 evaluates genu recurvatum. While the medical record indicates that the Veteran underwent a left knee meniscectomy, his current rating is already greater than, or equal to, what could be assigned under the appropriate diagnostic codes for semilunar conditions. Additionally, the medical record does not document any of these other conditions in the Veteran’s bilateral knees. Therefore, these Diagnostic Codes are not applicable and will not be discussed further. Diagnostic Code 5260 evaluates limitation of knee flexion. A noncompensable rating is assigned for flexion limited to 60 degrees, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, a 30 percent rating is assigned flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of knee extension is evaluated by Diagnostic Code 5261. A noncompensable rating is assigned for extension limited to 5 degrees, a 10 percent rating is assigned 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, and a 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, “severe” represented the highest or most extreme level of disability. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for 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. A 10 percent rating is assigned 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. Regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id., Note (2). However, as noted above, these conditions are not diagnosed, and the Veteran does not allege that he experiences patellar instability or recurrent subluxation. Left Knee Upon review of the record, the Board finds that ratings in excess of 20 percent for the left knee flexion and 50 percent for the left knee extension are not warranted for the period prior to May 2, 2019. The Veteran’s treatment records show he received continual care and treatment for his left knee pain and limitation of motion prior to his total knee replacement on May 2, 2019, however, they do not contain specific findings which would warrant an increased disability ratings for his limitation of motion. The Veteran was provided with a November 2015 VA Knee Conditions examination. During the examination, the examiner confirmed the Veteran’s diagnosis of degenerative arthritis in his bilateral knees. The examiner reported that the Veteran’s range of motion for his left knee was 10 to 70 degrees (normal 0 to 140) at its worst during a flare up. The examiner noted the Veteran experienced pain with extension and flexion as well as difficulty walking, kneeling, squatting, and climbing. No ankylosis, subluxation, or lateral instability was reported. However, this examination did not provide the information required by Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As such, the Board remanded the Veteran’s claim in June 2019 in order to obtain a retrospective opinion on the Veteran’s left knee which applied the Correia and Sharp requirements to the Veteran’s knee prior to its replacement. In an August 2020 Addendum opinion, after a review of the claims file and the Veteran’s treatment notes, a VA examiner provided a retrospective opinion regarding the Veteran’s left knee. The examiner noted that prior to his left knee replacement, the Veteran was suffering from severe arthritis. The examiner continued that the Veteran’s active and passive range of motion would not have differed from one another, and that the Veteran would have experienced pain that was higher with weight bearing. The examiner noted that opining on the range of motion of the Veteran’s left knee prior to his knee replacement would be mere speculation, but his range of motion restriction would have been severe and very painful. In a September 2020 rating decision, the RO assigned the Veteran’s current maximum 50 percent rating for left knee extension and restored the Veteran’s 20 percent disability rating for left knee extension effective throughout the relevant period on appeal. In this case, there is no question that prior to his left knee replacement the Veteran’s left knee experienced pain which restricted overall motion resulting in limitation of weight-bearing and walking; however, the Veteran is already in receipt of the highest schedular evaluation for limitations of extension. Additionally, range of motion testing done prior to the Veteran’s left knee replacement does not show a limitation of flexion which would entitle him to a disability rating greater than his assigned 20 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261, 5256; see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (The functional factors specified in DeLuca are not applicable where the highest rating has been granted for limitation of motion and a higher rating requires ankylosis.). The Veteran has consistently reported chronic knee pain and difficulty with weight-bearing, and walking; however, the probative evidence shows a higher rating is unwarranted under the other relevant diagnostic codes and the Veteran is already in receipt of a maximum rating under DC 5261. As such, entitlement to a disability rating in excess of 20 percent for the Veteran’s limitation of flexion and a disability rating in excess of 50 percent for the Veteran’s limitation of extension for the period prior to May 2, 2019, are not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Right Knee Upon review of the record, the Board finds that disability ratings in excess of 10 percent for the period prior to December 19, 2019, and in excess of 40 percent, thereafter, are not warranted. Additionally, the Board notes that entitlement to a compensable disability rating for the Veteran’s service-connected right knee limitation of flexion is not warranted. The Veteran’s treatment records show he received continual care and treatment for his right knee pain and limitation of motion throughout the period on appeal. However, they do not contain specific findings which would warrant increased disability ratings for his limitation of motion. Also, the Board notes that during his May 2019 Board hearing, the Veteran indicated that his right knee disability had worsened since his last VA examination, however, no objective evidence of worsening was documented of record. The Veteran’s was provided with a November 2015 VA Knee Conditions examination. During the examination, the examiner confirmed the Veteran’s diagnosis of degenerative arthritis in his bilateral knees. The examiner reported that the Veteran’s range of motion for his right knee was 10 to 70 degrees (normal 0 to 140) at its worst during a flare up. The examiner noted the Veteran experienced pain with extension and flexion as well as difficulty walking, kneeling, squatting, and climbing. No ankylosis, subluxation, or lateral instability was reported. However, this examination did not provide the information required by Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As such, the Board remanded the Veteran’s claim in June 2019 in order to obtain an adequate VA opinion. In response to the Board’s remand, the Veteran was provided with a December 2019 VA Knee conditions examination. During the examination the Veteran reported he has difficulty walking due to his right knee condition. Further, the examiner noted that the Veteran experiences severe pain on flexion and extension. The examiner reported that the examination was taking place during a flare-up and the Veteran experienced range of motion in his right knee of 30 to 90 degrees (normal 0 to 140). No ankylosis, subluxation, or lateral instability was reported. The examiner reported the Veteran experienced pain with weight bearing and non-weight bearing. Additionally, in an August 2020 Addendum opinion, after a review of the claims file, the November 2015 examination, and the Veteran’s treatment notes, a VA examiner provided a retrospective opinion regarding the Veteran’s knees. The examiner noted that the Veteran’s active and passive range of motion would not have differed from one another, and that the Veteran would have experienced pain that was higher with weight bearing. In a June 2020 rating decision, the RO increased the Veteran’s disability rating for limitation of extension of his right knee from 10 percent to 40 percent effective December 19, 2019, the date objective evidence showed a worsening of the Veteran’s right knee extension. In this case, there is no question that the Veteran’s right knee experienced pain which restricted overall motion resulting in limitation of weight-bearing and walking; however, at no point on appeal has the Veteran’s right knee shown a compensable limitation of flexion. Because the Veteran’s limitation of motion is noncompensable under the appropriate diagnostic code for flexion, and the probative evidence shows a higher rating is unwarranted under the other relevant diagnostic codes, he is not entitled to a compensable disability rating for his right knee flexion. Regarding his right knee extension, the evidence of record does not show that the Veteran’s limitation on extension met the criteria for a greater than 10 percent disability rating prior to December 19, 2019. Nor does the evidence suggest that the Veteran’s extension is limited to 45 degrees or more as required for a higher 50 percent rating for the period thereafter. The Veteran has consistently reported chronic knee pain and difficulty with weight-bearing, and walking, however, the probative evidence shows a higher rating is unwarranted under the other relevant diagnostic codes. As such, entitlement to a compensable disability rating for the Veteran’s limitation of flexion; a disability rating in excess of 10 percent for the Veteran’s right knee limitation of extension for the period prior to December 19, 2019; and a disability rating in excess of 40 percent for the Veteran’s limitation of extension for the period thereafter, are not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU The Board notes that the Veteran is in receipt of a temporary total 100 percent disability rating for surgical convalescence effective beginning May 2, 2019 and is already awarded TDIU for the period beginning July 1, 2020, the date the temporary total evaluation ends. As such the Board will address the earlier periods on appeal where the Veteran is not entitled to a 100 percent disability rating. As an initial matter, the Board observes that the Veteran has met the schedular criteria for TDIU from at least January 2007. For the relevant period prior to May 2, 2019, on appeal, the Veteran had a combined schedular rating of 70 percent disabling with limitation of left knee extension rated at 50 percent disabling; limitation of right knee extension at 10 percent disabling; left knee limitation of flexion at 20 percent disabling; a noncompensable rating for a left knee scar; and a noncompensable rating for right knee flexion. Based on the evidence, the Board finds that the Veteran’s service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment. The Veteran has not worked since his last employment in a machine shop in 2003. See April 2009 VA Form 21-8940 Application for Increased Compensation Based on Unemployability. This job, and virtually any other job, require the Veteran to be able to attend normal workday hours, as well as interact and communicate effectively with others. Additionally, the Veteran has four years of high school education and denied any additional education or training after becoming disabled. The Veteran’s medical records reflect significant pain and impairment associated with disabilities of the knees. The Veteran has a history of difficulty walking, squatting, sitting, and severe painful motion of his knees; all of which have caused his service-connected knee disabilities to result in significant work impairment since service. Thus, his service-connected disabilities not only caused significant work impairment but also substantially impaired his capacity to gain work experience following service. In this case, the Board must determine the value of all evidence submitted, including medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board notes that the Veteran has been afforded multiple VA examination opinions over the years. The VA examinations come from competent examiners who support their conclusions with evidence and sound medical reasoning. As such their medical opinions meet the first and second step of the inquiry. Throughout the record the VA examiners note that the Veteran would have multiple difficulties associated with employment due to his knee conditions. The Board has considered the Veteran’s lay statements in support of his claim. He is competent to report symptoms such as pain, swelling, difficulty walking, and difficulty standing because it requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran’s lay statements are consistent with other medical evidence in the record, notably the VA examination reports. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. Affording the Veteran the benefit of the doubt, the Board finds that his significant impairment due to service-connected disabilities combined with limited educational achievement and little or no work experience outside of physically demanding work, rendered him incapable of obtaining or retaining substantially gainful employment, or that the evidence is at least in equipoise. As noted above, the Veteran’s service-connected disabilities met the schedular requirement for TDIU during the relevant periods, and the Veteran provided competent evidence addressing his symptoms and limitations. Additionally, for the period prior to May 2, 2019, the evidence is at least in equipoise as to whether the Veteran was unemployable due to his service-connected disabilities. Thus, the Board resolves all reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Based on the foregoing, the Board finds that the Veteran’s service-connected disabilities have prevented him from obtaining and maintaining substantial employment, and therefore, a TDIU is warranted for the relevant periods on appeal. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.