Citation Nr: 21016178 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-12 553A DATE: March 22, 2021 ORDER Entitlement to a 20 percent rating for right knee limitation of motion, effective September 9, 2019, is granted. Entitlement to a rating in excess of 20 percent for right knee limitation of motion is denied. Entitlement to a 10 percent rating for right knee painful motion from November 16, 2012 to September 9, 2019, is granted. REMANDED Entitlement to an effective date earlier than December 12, 2018 for total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT 1. Effective September 9, 2019, the Veteran right knee is productive of extension limited to 15 degrees or more. 2. Even considering the Veteran’s pain and corresponding functional impairment, including during flare-ups, the Veteran’s right knee is not productive of flexion limited to 45 degrees or less or extension limited to 20 degrees or more. 3. From November 16, 2012 to September 9, 2019, the Veteran’s right knee was productive of painful motion and noncompensable limitation of motion for flexion and extension. CONCLUSION OF LAW 1. Effective September 9, 2019, the criteria for a 20 percent rating for right knee limitation of motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260-5261. 2. The criteria for a rating in excess of 20 percent for right knee limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5260-5261. 3. The criteria for a 10 percent rating for right knee painful motion from November 16, 2012 to September 9, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5010-5003. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1966 to September 1966. The Veteran presented sworn testimony at a hearing before the undersigned in September 2019. This matter was previously remanded by the Board in a December 2019 decision for further development. In the December 2019 Board decision, the Veteran was granted a separate 30 percent rating for right knee instability throughout the appeal and granted an initial 20 percent rating for right knee locking throughout the appeal. See December 2019 BVA Decision. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran’s disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by pain. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 3738 (2011); see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes 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, 25 Vet. App.at 44. Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. at 32. Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell, 25 Vet. App. at 44. Nonetheless, despite the relevance of the background factors delineated in § 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 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 [or § 4.73] criteria.”). In addition, the Court has held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” Sharp v. Shulkin, 29 Vet. App. 26 (2017). 1. Effective September 9, 2019, a 20 percent rating for right knee limitation of motion 2. Entitlement to a rating in excess of 20 percent for right knee limitation of motion The Veteran contends that his right knee disability has increased in severity over time and he is entitled to higher disability ratings for the right knee as his symptoms continue to worsen. See December 2019 BVA Decision; see also September 2019 Hearing Transcript. Service connection is currently in effect for right knee instability with a 30 percent evaluation under DC 5257, effective August 13, 1987., and for right knee locking with a 20 percent evaluation under DC 5258, effective November 16, 2012. The Board notes that as 30 percent is the higher schedular rating available under DC 5257, a rating in excess of 30 percent for Veteran’s right knee instability is not warranted. Additionally, as 20 percent is the highest schedular rating available under DC 5258, a rating in excess of 20 percent for Veteran’s right knee locking is not warranted. In the December 2019 Board decision, the Board noted the Veteran repeatedly referenced the use of ointment, pain medication and steroid injections to treat his right knees, and the examiners in Veteran’s prior VA examination did not estimate what the lost range of motion of other functional loss would be absent the ameliorative effects of his medication. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The claim was remanded for a new VA examination which also estimated the Veteran’s range of motion loss during flare-ups or explain why such would not be practical. Id. The Veteran was provided a post-remand VA examination for his knee in October 2020. Subsequent to the examination, the Veteran was granted service connection for limitation of extension of the right knee, with an evaluation of 20 percent effective October 29, 2020, pursuant to DC 5261. As the Veteran reported in the September 2019 Board hearing that his right knee disability had increased in severity, the Veteran’s 20 percent rating for limitation of extension should be granted an effective date from the date of the Board hearing as that was the initial evidence of a worsening of the condition, which was corroborated by the subsequent VA examination. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). The Board finds that the effective date of Veteran’s service-connected right knee limitation of motion should be changed to account for this period of disability, and the 20 percent rating is granted from September 9, 2019, the date of the Board hearing that ascertained an increase in the disability. Under DC 5260, where limitation of flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a , DC 5261, limitation of extension of the leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. In the October 2020 VA Knees examination, the Veteran reported continued right knee pain, stiffness, decreased range of motion and swelling requiring drainage every three months. The Veteran also reported joint injections, physical therapy and use of pain medication to deal with his knee disability. He reported flare-ups of the knee that lasts days to weeks with increased pain, stiffness and swelling. He stated he suffers functional loss for periods of time where he cannot climb, sit, or stand and has to use a walker. Initial range of motion measurement upon examination for the right knee showed extension limited to 10 degrees and flexion limited to 130 degrees, with functional loss due to pain limiting use. There was no objective evidence of localized tenderness or pain on palpation of the knee, but there was evidence of pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss of function or range of motion. The Veteran did not perform repetitive use over time testing; however, the examiner stated pain, fatigue and lack of endurance led to significantly limited functional ability with repeated use. While the examination was not conducted during a flare-up, the examiner estimated range of motion during flare-ups to be limited to 125 degrees flexion and 15 degrees extension; the examination was declared medically consistent with Veteran’s statements describing functional loss during flare-ups. Muscle strength testing showed normal strength in the right knee and Veteran did not have muscle atrophy. No ankylosis was noted. The Veteran’s functional impact due to his knee disability limits him from standing/walking without a walker, he cannot sit/stand or walk for periods, therefore impacting his ability to function in an occupational environment. The VA examination results showed range of motion for flexion was noted to be limited to 130 degrees, 125 degrees during flare-ups. At no time during the appeal period has the Veteran’s right knee been limited to 45 degrees flexion or less. See April 2013 VA Examination; December 2013 VA Examination; December 2018 VA Examination. Under DC 5260, which provides ratings under limitation of flexion, the examination results do not result in a disability picture that acquiesces with a compensable rating. The Board finds that the preponderance of the evidence is against a finding the Veteran is entitled to a rating in excess of 20 percent for limitation of motion for his right knee. Under DC 5261, to warrant a rating in excess of 20 percent, extension must be limited to 20 degrees or more. At no time during the appeal period has the Veteran’s knee been limited to 20 degrees extension or more. See April 2013 VA Examination; December 2013 VA Examination; December 2018 VA Examination. A higher evaluation under DC 5261 of 30 percent is not warranted unless the record shows leg extension which is limited to 20 degrees. Even considering the Veteran’s reported functional limitations (e.g., right knee pain, stiffness, swelling, inability to walk, sit or stand for periods), the Board finds that the preponderance of the evidence is against a finding the Veteran’s right knee disability warrants an increased rating for limitation of motion. A rating in excess of 20 percent is not warranted. 3. Entitlement to a 10 percent rating for right knee painful motion from November 16, 2012 to September 9, 2019 The Veteran has complained of right knee pain, instability, arthritis and drainage since he filed his claim for increased ratings in November 2012. See November 2012 Statement in Support of Claim. The Veteran was granted a compensable evaluation for his right knee limitation of motion in a December 2020 rating decision, effective October 29, 2020. The effective date of Veteran’s right knee limitation of motion is now September 9, 2019. 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). DC 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, DC 5003. Here, prior to September 9, 2019, the medical record indicates that the only manifestation of the Veteran’s right knee disability that has been identified is limitation of motion due to pain. Thus, although he has not demonstrated compensable limitation of motion, a 10 percent rating is warranted in light of his right knee arthritis. Lichtenfels. The Veteran has repeatedly reported that he experiences pain. He has reported pain to each medical examiner, and he has additionally discussed his pain in repeated submissions to the RO. Because of the Veteran’s painful limitation of knee motion, and other symptoms, the presently assigned disability rating of 10 percent is appropriate. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45, 4.59. However, the Board finds that the preponderance of the evidence is against the assignment of any higher or additional separate rating for limitation of motion of the right knee from November 16, 2012 to September 9, 2019. The rating assigned has considered additional functional loss due to pain and other factors. REASONS FOR REMAND Entitlement to an effective date earlier than December 12, 2018 for total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. In a June 2019 rating decision, the RO granted a TDIU, effective December 12, 2018. Although the Veteran has not appealed the effective date of the award of TDIU, the matter remained on appeal because it has not been awarded back to the effective date of the entire period on appeal based on the underlying claims of an initial increased ratings effective from January 1, 2012, the day following the last day the Veteran worked. Harper v. Wilkie, 30 Vet. App. 356 (2018). The matter was also remanded in December 2019 as it was inextricably intertwined with the other claims on appeal. The Veteran testified at his September 2019 Board Hearing that he stopped working at the end of 2011 due to his service-connected disabilities, as his commercial construction contracting business required climbing and lifting that he could no longer perform. The Veteran asked during his hearing to grant an effective date of January 1, 2012, for his TDIU. See September 2019 Hearing Transcript. The Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability in March 2019, in which he stated his left knee and right knee, lower radiculopathies, lumbar and hip disabilities collectively prevented him for securing or following any substantially gainful occupation. He stated he last worked full-time December 31, 2011, when he became too disabled to work. He had been self-employed and working for his construction business from 1974 to 2011. The Veteran had three years of college education. The Veteran stated in a letter in support of his claim that medical problems regarding his right knee, left knee, back and hips had worsened to the point by 2010 that he could no longer work and used his savings to pay both personal and company bills; finding a non-manual labor job was not possible for him and he was left to file bankruptcy in December 2010. See January 2020 Correspondence. The Veteran’s spouse also submitted a statement in support of claim in which she asserts that the Veteran’s right knee problems led to other medical problems such as the hip, back and left knee issues which deteriorated to the point that by 2011, he was no longer able to work and suffered from severe arthritis. See August 2020 Statement in Support of Claim. The Veteran also contends that by the beginning of 2012, he was financially depleted because of paying personal debt and business debt while his wife’s income and their savings were not enough to avoid bankruptcy in which they lost their family home of thirty years. The Veteran stated that he attempted to seek employment elsewhere and was denied because he did not have a college degree. See January 2021 Correspondence. As the Veteran does not meet the schedular requirements for TDIU prior to December 12, 2018, and the Veteran has asserted and the evidence suggests that he was unable to work prior to that date because of his service-connected disabilities, whether to grant TDIU must first be assessed by the Director of Compensation Service. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: After giving the Veteran an opportunity to submit evidence in support of his claim for TDIU prior to December 12, 2018, refer the claim for a TDIU to the Director, Compensation Service, for the time period on appeal prior to December 12, 2018. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.