Citation Nr: 21021060 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 18-18 592 DATE: April 9, 2021 ORDER Entitlement to a rating in excess of 20 percent for limitation of flexion due to a right knee strain with traumatic arthritis is denied. Entitlement to a rating in excess of 10 percent for a right knee strain with instability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) beginning August 9, 2016 is granted. FINDINGS OF FACT 1. The Veteran’s right knee flexion is limited to 25 degrees during flareups. 2. The Veteran’s right knee instability has manifested as no more than a slight impairment. 3. Resolving reasonable doubt in favor of the Veteran, his service-connected disabilities precluded him from obtaining or retaining substantially gainful employment beginning August 9, 2016, the day he submitted his intent to file the instant increased rating claim.  CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for limitation of flexion due to a right knee strain with traumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5260 (2019). 2. The criteria for a rating in excess of 10 percent for a right knee strain with instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5257 (2019). 3. The criteria for a TDIU beginning August 9, 2016 have been met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) and (b) (2019).  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a prior decision on this claim in January 2019. However, following an appeal to the United States Court for Appeals for Veterans Claims (Court), in March 2020 a Joint Motion for Partial Remand (Joint Motion) was entered, vacating the Board’s January 2019 decision.  The record shows additional relevant evidence was associated with the file after the statement of the case; however, as this evidence is cumulative and redundant of prior evidence showing no instability of the right knee and range of motion of the knee that does not meet the criteria for a higher rating, and this evidence was considered as part of the claim seeking entitlement to a TDIU (see March 2021 rating decision) which is part and parcel of the underlying increased rating claim, remand is unnecessary. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (providing that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (providing that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.       Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.       When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.          The Veteran’s right knee arthritis is rated under DC 5260 for limitation of flexion of the leg. DC 5260 provides a 0 percent rating for flexion limited to 60 degrees; a 10 percent rating for flexion limited to 45 degrees; a 20 percent rating for flexion limited to 30 degrees; and a 30 percent rating for flexion limited to 15 degrees. The Veteran was also granted a separate rating under DC 5257 for recurrent subluxation or lateral instability of the knee. DC 5257 provides a 10 percent rating for a slight impairment; a 20 percent rating for a moderate impairment, and a 30 percent rating for a severe impairment. 1. Entitlement to a rating in excess of 20 percent for limitation of flexion due to a right knee strain with traumatic arthritis. 2. Entitlement to a rating in excess of 10 percent for a right knee strain with instability. The Veteran is in receipt of separate ratings for service-connected right knee strain and right knee instability, rated as 20 percent and 10 percent disabling, respectively. Although he seeks higher ratings for each separate disability, the Board will consider the two separately rated manifestations of the right knee disability together. The evaluation for the right knee strain was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, corresponding to limitation of flexion, while the evaluation for the right knee instability specifically was assigned pursuant to Diagnostic Code 5010-5257. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that the symptomatology of the right knee disability is manifested as traumatic arthritis pursuant to Diagnostic Code 5010, with Diagnostic Code 5257 and 5260 representing residual conditions of the arthritis that correspond to recurrent subluxation or lateral instability and limitation of flexion, respectively. A review of the additional DCs provided for knee impairments (DC 5256, 5258, 5259, 5261 and 5162) are not warranted as the Veteran does not suffer from ankylosis, a cartilage/semilunar condition, limitation of extension, or an impairment of the tibia and fibula with regard to the right knee. The Board notes that effective February 7, 2021, the rating requirements for DC 5257 changed, however the prior rating requirements are more favorable to the Veteran, thus the Board will use those in this decision. The Veteran requested an increased rating of his service-connected right knee condition in September 2016, following an August 2016 intent to file. As a result, the Veteran was given a VA examination for his knee in February 2017. Here, the examiner noted no flareups and found the Veteran’s right knee flexion to be to 120 degrees. Pain was noted on exam that causes functional loss, but the degree at which pain began was not provided. The examiner noted no additional range of motion loss on repetitive use testing, or after repeated use over time. The examiner found no history of recurrent subluxation or lateral instability but did note medial and lateral instability measured at the minimum level (1+). No meniscal conditions were found, and no functional impact was noted. Based on this exam, the RO issued a February 2017 rating decision granting service connection for right knee strain with instability, evaluated at 10 percent, and continuing the Veteran’s 20 percent rating for his intermittent right knee strain with traumatic arthritis. In a February 2018 report of general information the Veteran called and requested any missed C&P examinations be rescheduled as he had been out of town helping his daughter recover from a hurricane. The Veteran was given another VA examination for his knee in March 2018. Here, the examiner noted flareups if the Veteran is on his feet for extended periods of time and found his flexion to be limited to 90 degrees. Pain was noted on exam that did not result in/cause functional loss. Additional range of motion loss was found after repetitive use testing with the Veteran’s flexion being limited to 70 degrees. However, with regard to repetitive use over time and flareups the examiner indicated that he was unable to say what additional range of motion loss might be without resorting to mere speculation. No ankylosis, joint instability, or meniscal conditions were found. With regard to functional loss the examiner wrote “Exacerbations of pain can adversely affect activities of daily living and job performance (standing, bending).” Based on this examination the RO issued a statement of the case continuing the Veteran’s current right knee evaluations. Following an appeal to the Board, the Board issued a January 2019 decision denying an increased rating for either of the Veteran’s service-connected right knee conditions. However, as noted above this decision was vacated following a March 2020 Joint Motion instructing the Board to provide an adequate statement of reasons and bases for its decision. The Veteran was given another VA examination for his knee in January 2021. Here, the examiner noted flareups that occur 2-3 times per month, lasting 2-3 days and that are alleviated by rest and elevation. The examiner found the Veteran’s right knee flexion to be limited to 50 degrees with evidence of pain on active motion and passive motion. The Veteran’s range of motion was found to be the same following repetitive use and even better following repeated use over time. However, the examiner estimated that the Veteran’s flexion would be limited to 25 degrees during a flareup. Moreover, the examiner noted interference with standing and interference with sitting as contributing factors of the Veteran’s right knee disability. No ankylosis, recurrent subluxation, persistent instability, or recurrent patellar instability was found, nor were any meniscal conditions noted. The occasional use of a cane was noted and functional impact of an inability to move swiftly, walk for more than 10 minutes, or run was found. The Board finds these examination results to be consistent with the currently assigned 20 percent rating under DC 5260 and the 10 percent rating under DC 5257. In considering the arguments provided by the Veteran’s representative and the Veteran’s lay statements pointed out in the Joint Motion, the Board is not persuaded that an increased rating is warranted. In the December 2020 representative brief, it is argued that the Veteran’s right knee “always” giving out more closely approximates a moderate impairment, rather than a slight impairment. While the Veteran has asserted that his “right knee always gave out” the medical evidence of record does not support such a finding. To the extent that the Veteran is arguing that objective medical evidence is not required for a finding that his right knee instability causes a moderate impairment, rather than the currently assigned slight impairment, the Board finds the Veteran’s statement regarding his right knee “always” giving out to be not credible. Several VA examiners have found no right knee instability and at his most recent VA examination the Veteran only noted occasional flareups, rather than his knee giving out all the time. It is not plausible to the Board that a knee that “always” gives out that this level of frequency and severity of impairment would not routinely be captured and demonstrated on physical examination. While medical evidence is not categorically more probative than lay evidence as claimed in English v. Wilkie, 30 Vet. App. 347 (2018), medical evidence is not irrelevant. The Veteran’s lay evidence is outweighed by competent and credible medical evidence that evaluates the true extent of the knee impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Thus, entitlement to a rating in excess of 10 percent for right knee strain with instability is denied. With regard to the Veteran’s limitation of flexion, the Joint Motion noted that the prior March 2018 VA examination was not adequate as the examiner failed to provide an estimate of the Veteran’s range of motion during a flareup. The Board notes that the most recent VA examination from January 2021 provides such information and is still consistent with the currently assigned 20 percent rating. A review of the evidence does not show that the Veteran’s right knee flexion is limited to 15 degrees or less, which is required for the next higher rating of 30 percent. Moreover, the Veteran’s complaints of stiffness and pain with walking, bending, kneeling, standing, and descending stairs, are already accounted for in the Veteran’s currently assigned 20 percent rating. Accordingly, entitlement to a rating in excess of 20 percent for limitation of flexion due to a right knee strain with traumatic arthritis is also denied. II. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). However, it must be considered whether to refer a TDIU claim to the Director of Compensation Service for extraschedular consideration when the Veteran’s service-connected disabilities do not meet the schedular percentage requirement. 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 3. Entitlement to a TDIU beginning August 9, 2016. The Veteran is currently service connection for coronary artery disease (CAD), status post myocardial infraction, evaluated at 60 percent; intermittent right knee strain with traumatic arthritis, evaluated at 20 percent; right knee strain with instability, evaluated at 10 percent; diabetes mellitus type II, evaluated at 10 percent; left knee osteoarthritis, evaluated at 10 percent; and left ear hearing loss, evaluated at 0 percent; for a combined total rating of 70 percent or higher. Accordingly, the Veteran meets the schedular threshold requirement for a TDIU. Turning to the second requirement, the Veteran first filed an application for a TDIU in December 2020 contending that his service-connected disabilities rendered him unable to work in October 2010. The Veteran listed his prior employment as a geologist and reported he had a four-year college education, as well as a license in blast and a professional geologist certificate. In support of his application the Veteran also provided remarks that his bilateral knees cause him pain and trouble with stairs, bending, kneeling, and squatting, that he can only stand up for about 10 minutes before having to move or walk, that he is only able to sit for 30 minutes before increased pain in his knees begins, that he experiences frequent heartburn due to his CAD, that he uses a cane whenever he goes outside, and that his left ear hearing loss causes trouble hearing others. The Veteran provided additional support of his claim by way of a vocational assessment report, wherein a certified rehabilitation counselor opined “in considering the medical records from multiple service providers as they relate to limitations of the Veteran’s service-connected coronary artery disease, right knee conditions, and left ear hearing loss, it is at least as likely as not that [the Veteran] has been unable to secure and follow substantially gainful employment, to include sedentary unskilled and skilled employment, since at least August 2016 to the present. Additionally, the Veteran’s service-connected left knee condition has at least as likely as not further precluded his ability to secure and follow substantially gainful employment since at least January 2018 to the present.” The rehabilitation counselor went on to note that even sedentary work requires occasional (up to 1/3rd of the time) lifting, walking, and standing, and that the symptoms caused by the Veteran’s service-connected disabilities of shortness of breath with minimal physical exertion, chronic bilateral knee pain and stiffness, difficulty sitting, standing, and walking, the need for unscheduled breaks to lie down and elevate his legs, and difficulty communicating with coworkers would preclude him from even sedentary employment. The Veteran was most recently given VA examinations for his service-connected conditions in January 2021. With regard to the Veteran’s hearing loss, the examiner opined “The Veteran presents with severe to profound hearing loss at the higher frequencies in both ears. The Veteran also has reduced speech discrimination ability in both ears. Hearing aids do provide a significant benefit to his functional ability in a quiet environment. The hearing loss will make it extremely difficult to work or function in a noisy environment that requires communication with coworkers and/or customers.” No functional impact was noted to be caused by the Veteran’s diabetes, but the examiner opined that “During low blood glucose level the Veteran will feel sweaty and dizzy and he with [sic] not be able to walk or drive.” Finally, with regard to the Veteran’s bilateral knees and CAD, the examiner opined “This condition affect [sic] his ability to move swiftly, unable to walk more than 10 minutes, unable to run. He is not on any medications at this time. He use [sic] rest and elevation to help with the pain. The condition affect [sic] his ability to kneel and do his gardening.” The Board finds that the rehabilitation counselor provided sufficient rationale to support his opinion. Despite the VA examiners’ opinions which indicate that the Veteran may still be able to work in some capacity, resolving reasonable doubt in favor of the Veteran, the Board finds entitlement to a TDIU beginning August 9, 2016, the date VA received the Veteran’s intent to file his claim for an increased rating, is warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate 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.