Citation Nr: 21021559 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-19 169 DATE: April 13, 2021 ORDER A disability rating in excess of 10 percent for left knee patellofemoral syndrome is denied. A disability rating in excess of 30 percent prior to February 26, 2019 and in excess of 10 percent thereafter for right knee patellofemoral syndrome is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left knee patellofemoral syndrome has not been characterized by limitation of flexion to 30 degrees, limitation of extension to 15 degrees, a combination of limitation of flexion to 45 degrees and limitation of extension to 10 degrees, or favorable ankylosis of the knee in full extension or in slight flexion between 0 and 10 degrees. 2. Prior to February 26, 2019, the Veteran’s right knee patellofemoral syndrome was not characterized by ankylosis of the knee in flexion between 10 or 20 degrees or limitation of extension to 30 degrees. 3. From February 26, 2019, the Veteran’s right knee patellofemoral syndrome has not been characterized by limitation of flexion to 30 degrees, limitation of extension to 15 degrees, a combination of limitation of flexion to 45 degrees and limitation of extension to 10 degrees, or favorable ankylosis of the knee in full extension or in slight flexion between 0 and 10 degrees. 4. The evidence does not indicate that the Veteran is unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5260. 2. The criteria for a disability rating in excess of 30 percent prior to February 26, 2019 and in excess of 10 percent thereafter for right knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5260. 3. The criteria for a total disability rating based on individual unemployability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2005 to July 2012. The Board notes that in an April 2014 rating decision, the RO assigned two separate ratings separate 10 percent disability ratings for the Veteran’s left knee disability based upon instability under DC 5257 and limitation of motion due to patellofemoral syndrome under DC 5260, and two separate 10 percent disability ratings for her right knee disability based upon instability under DC 5257 and limitation of motion due to patellofemoral syndrome under DC 5260. In April 2015, she submitted a claim seeking increased ratings solely for the 10 percent disability ratings assigned to her left and right knees based upon limitation of motion due to patellofemoral syndrome. A September 2015 rating decision continued the 10 percent disability ratings assigned to her left and right knees based upon limitation of motion due to patellofemoral syndrome. In her October 2015 notice of disagreement, she appealed only the disability ratings assigned to her left and right knees based upon limitation of motion due to patellofemoral syndrome. Accordingly, the disability ratings assigned to her left and right knees based upon instability and shin splints, which were granted in a subsequent rating decision, are not on appeal. Increased Ratings 1. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral syndrome 2. Entitlement to a disability rating in excess of 30 percent prior to February 26, 2019 and in excess of 10 percent thereafter for right knee patellofemoral syndrome The Veteran is seeking increased disability ratings for her service-connected limitation of motion of the left and right knees due to patellofemoral syndrome. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate 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. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that during the course of this appeal, the schedular criteria for evaluating certain knee disabilities were amended. However, the schedular criteria concerning limitation of motion was not among the knee disabilities that were changed by that amendment. The Veteran’s left knee patellofemoral syndrome is currently assigned a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5260 (addressing limitation of motion). The Veteran’s right knee patellofemoral syndrome was assigned a 30 percent disability rating prior to February 26, 2019, and has been assigned a 10 percent disability rating since February 26, 2019. In order to warrant a disability rating in excess of 10 percent based on limitation of motion, the evidence must show: • Limitation of flexion to 30 degrees (20 percent under DC 5260); • Limitation of extension to 15 degrees (20 percent under DC 5261); • Limitation of flexion to 45 degrees and limitation of extension to 10 degrees (two separate 10 percent ratings under DCs 5260 and 5261, respectively); • Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256); or • X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003). 38 C.F.R. § 4.71a. In order to warrant a disability rating in excess of 30 percent based on limitation of motion, the evidence must show: • Ankylosis of the knee in flexion between 10 or 20 degrees (40 percent under DC 5256); or • Limitation of extension to 30 degrees (40 percent under DC 5261). Id. After a review of the evidence of record, the Board concludes that a disability rating in excess of 10 percent for the Veteran’s left knee patellofemoral syndrome is not warranted for the period on appeal. The Board also concludes that a disability rating in excess of 30 percent prior to February 26, 2019, and in excess of 10 percent thereafter, for the Veteran’s right knee patellofemoral syndrome is not warranted. Initially, the reports from the April 2014, July 2015, December 2016, February 2019, and October 2020 VA examinations fail to establish that a disability rating in excess of 10 percent is warranted for the Veteran’s left knee patellofemoral syndrome or that a disability rating in excess of 30 percent prior to February 26, 2019, and in excess of 10 percent thereafter, is warranted for her right knee patellofemoral syndrome. The report from the April 2014 VA examination reflects that the Veteran reported that her knees hurt when running, become swollen on a daily basis, resulting in her feeling that she could not bend her knee past a certain point, and become stiff if she remains in a sitting position for an extended period of time. The Veteran did not report that flareups impacted the function of her knees. The examination report reflects that the Veteran had a normal range of motion in both knees with flexion in both knees ending at 140 degrees and extension ending at 0 degrees. The examiner did not observe any painful motion in connection with flexion and painful motion beginning at 45 degrees or greater with respect to extension. The examination report further reflects that the Veteran was able to perform repetitive use testing without any additional functional loss or loss of range of motion after three repetitions. Additionally, the examination report does not reflect she had ankylosis in either knee. Finally, no occasional incapacitating exacerbations of arthritis were noted in the examination report given that the examination report reflects that degenerative and traumatic arthritis were not documented. The report from the July 2015 VA examination reflects that the Veteran reported that her knees became swollen and gave out and that she experienced severe pain in her knees at the end of the day, and that she experienced flareups, which caused her knees to become swollen and made it painful for her to bend or walk. The Veteran was examined during a flareup and immediately after repetitive use over time. With respect to her right knee, the examination report reflects flexion ended at 75 degrees and extension ended at 0 degrees. With respect to her left knee, the examination report reflects that flexion ended at 90 degrees and extension ended at 0 degrees. The examiner noted that there was pain on flexion in both knees, but that there was no evidence of pain with weight bearing or crepitus. The examination report further reflects that she was able to perform repetitive use testing without any additional functional loss or loss of range of motion after three repetitions. Additionally, the examination report reflects that she did not have ankylosis in either knee. Finally, no occasional incapacitating exacerbations of arthritis were noted in the examination report. The report from the December 2016 VA contract examination reflects that the Veteran reported that her knee had recently given out, that it remained swollen and painful, and that she experienced flareups with intermittently increased pain and swelling. The Veteran was examined during a flareup. With respect to her right knee, the examination report reflects that flexion ended at 10 degrees and extension ended at 0 degrees. With respect to her left knee, the examination report reflects that flexion ended at 140 degrees or greater and extension ended at 0 degrees. The examiner noted that right knee pain was noted on flexion and extension, that there was evidence of right knee pain with weight bearing, but that there was no objective right knee crepitus. With respect to her left knee, the examiner noted that no pain was noted on examination, and that there was no objective evidence of left knee crepitus. The examination report also reflects that she was able to perform repetitive use testing without any additional functional loss or loss of range of motion in either knee after three repetitions. Additionally, the examination report reflects that she did not have ankylosis in either knee. Finally, no occasional incapacitating exacerbations of arthritis were noted in the examination report given that the examination report reflects that degenerative and traumatic arthritis were not documented. The report from the February 2019 VA examination reflects that the Veteran reported that she experienced pain, weakness, and swelling in her knees, she had undergone physical therapy for her knee disabilities, and had her right knee drained every six months. She also reported that she experienced flareups, where she felt more significant pain in cold weather and when walking or sitting for a significant duration. With respect to her right knee, the examination report reflects that flexion ended at 100 degrees and extension ended at 0 degrees. With respect to her left knee, the examination report reflects that flexion ended at 120 degrees and extension ended at 0 degrees. The examiner noted that right and left knee pain were noted on flexion and extension and that there was evidence of pain with weight bearing, but there was no evidence of crepitus. The examination report also reflects that she was able to perform repetitive use testing without any additional functional loss or loss of range of motion in either knee after three repetitions. Although the examination was not conducted immediately after repetitive use over time or during a flareup, the examiner indicated that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and describing functional loss during a flareup, and estimated that there was no additional functional loss or loss of range of motion. The examination report further reflects that she did not have ankylosis of either knee. Finally, no occasional incapacitating exacerbations of arthritis were noted in the examination report given that the examination report reflects that degenerative and traumatic arthritis were not documented. The report from the October 2020 VA examination reflects that the Veteran reported that she experienced flareups resulting in increased pain, swelling, and her knee giving out. With respect to her right knee, the examination report reflects that flexion ended at 90 degrees and extension ended at 0 degrees. With respect to her left knee, the examination report reflects that flexion ended at 140 degrees and extension ended at 0 degrees. The examiner noted that right and left knee pain were noted on flexion and extension and that there was evidence of pain with weight bearing, but there was no evidence of crepitus. The examination report also reflects that she was able perform repetitive use testing without any additional functional loss or loss of range of motion in either knee after three repetitions. Although the Veteran was not examined immediately after repetitive use over time, the examiner estimated that after repetitive use over time, right knee flexion would end at 85 degrees and extension would end at 0 degrees, and left knee flexion would end at 140 degrees and extension would end at 0 degrees. She also was not examined during a flareup, but the examiner estimated that right knee flexion would end at 85 degrees and extension would end at 0 degrees, and left knee flexion would end at 140 degrees and extension would end at 0 degrees. The examination report further reflects that she did not have ankylosis of either knee. With respect to the Veteran’s left knee patellofemoral syndrome, because the reports from the April 2014, July 2015, December 2016, February 2019, and October 2020 VA examinations do not show that flexion has been limited to 30 degrees, that extension has been limited to 15 degrees, that flexion has been limited to 45 degrees and extension has been limited to 10 degrees, ankylosis, or x-ray evidence of arthritis with involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes, these VA examinations fail to show that a disability rating in excess of 10 percent is warranted. With respect to the 30 percent disability rating assigned to the Veteran’s right knee patellofemoral syndrome prior to February 26, 2019, because the reports from the April 2014, July 2015, December 2016, and February 2019 VA examinations fail to show ankylosis or that extension was limited to 30 degrees, these VA examinations fail to show that a disability rating in excess of 30 percent prior to February 26, 2019 is warranted. With respect to the 10 percent disability rating assigned to the Veteran’s right knee patellofemoral syndrome from February 26, 2019, because the report from the October 2020 VA examination does not show that flexion was limited to 30 degrees, that extension was limited to 15 degrees, that flexion was limited to 45 degrees and extension has been limited to 10 degrees, ankylosis, or x-ray evidence of arthritis with involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes, the October 2020 VA examination fails to show that a disability rating in excess of 10 percent from February 26, 2019 is warranted. Moreover, none of the Veteran’s treatment records indicate that his left knee flexion ended at 30 degrees, extension ended at 15 degrees, or that flexion ended at 45 degrees and extension at 10 degrees, that his right knee extension ended at 30 degrees prior to February 26, 2019, or that his right knee flexion ended at 30 degrees, extension ended at 15 degrees, or that flexion ended at 45 degrees and extension at 10 degrees from February 26, 2019. His treatment records also provide no evidence of ankylosis. Finally, the record contains no x-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joints with occasional incapacitating episodes. Accordingly, the Board concludes that a rating in excess of 10 percent based upon limitation of motion is not warranted. The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to fatigability, incoordination, pain on movement, pain on weight-bearing, flare-ups, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Sharp, 29 Vet. App. 26; Correia, 28 Vet. App. 158; DeLuca, 8 Vet. App. 206. In this case, the Veteran has indicated that her left and right knee disabilities have caused her to experience pain, swelling, weakness, and difficulty bending, running, and walking. Although she experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell, 25 Vet. App. At 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Importantly, the report from the February 2019 VA examination reflects she was able to perform repetitive use testing without any additional functional loss or loss of range of motion in either knee after three repetitions, and that the examiner estimated that there was no additional functional loss or loss of range of motion after repetitive use over time or during a flareup, and the report from the October 2020 VA examination reflects that there was no additional functional loss or loss of range of motion after repetitive use testing and that she would only lose five degrees of flexion after repetitive use over time or during a flareup. Additionally, although the examination reports reflect evidence of pain with weight bearing, her passive range of motion was the same as her active range of motion. Thus, the Board finds that the effect of the pain and functional loss caused by the Veteran’s left and right knee patellofemoral syndrome is already contemplated in the currently assigned evaluations. The Veteran’s statements, while fully credible, do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond that already assigned. Finally, the Board has considered statements by the Veteran that left and right knee patellofemoral syndrome are worse than the ratings she currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms of her left and right knee patellofemoral syndrome such as pain and limitation of motion because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate DCs. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 469; see also Cartright, 2 Vet. App. at 25. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s left disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the April 2014, July 2015, December 2016, February 2019, and October 2020 VA examination reports) directly address the criteria under which these disabilities are evaluated. By virtue of the foregoing, a disability rating in excess of 10 percent for the Veteran’s left knee patellofemoral syndrome is denied, a disability rating in excess of 30 percent prior to February 26, 2019 for her right knee patellofemoral syndrome is denied, and a disability rating in excess of 10 percent from February 26, 2019 for her right knee patellofemoral syndrome is denied. TDIU 3. Entitlement to a total disability rating based on individual unemployability The Veteran has asserted that she has been unable to work due to her service-connected disabilities. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 386 (Mar. 14, 2019). Further, the Board should also consider whether given the Veteran’s history, education, skill, and training, in conjunction with the Veteran’s physical ability and mental ability, can perform the type of activities required by the occupation at issue. See Id. Moreover, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). A total disability rating for compensation purposes may be assigned on the basis of “individual unemployability,” or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). After a review of the evidence of record, the Board determines that TDIU is not warranted. As a preliminary matter, the Board notes that the Veteran has met the schedular requirements for TDIU for the period on appeal. Specifically, she is service connected for migraines (50 percent from December 2014 to March 2018, noncompensable from March 2018 to September 2018, and 50 percent from September 2018), unspecified anxiety disorder (50 percent from April 2014), a back disability (20 percent prior to April 2015 and 40 percent thereafter), diabetes (10 percent prior to August 2019 and 20 percent thereafter), bilateral shin splints (10 percent from July 2012 to December 2013), gastroesophageal reflux disease (10 percent from July 2012), left knee patellofemoral syndrome (10 percent from December 2013), right knee patellofemoral syndrome (10 percent from December 2013 to November 2016, 30 percent from November 2016 to February 2019, and 10 percent thereafter), a left ankle disability (10 percent from September 2020), right knee instability (10 percent prior to October 2020 and noncompensable thereafter), left knee instability (10 percent prior to October 2020 and noncompensable thereafter), left shin splints (noncompensable), and right shing splints (noncompensable). Thus, because he has had a combined disability rating of 70 percent or more with at least one disability rated at 40 percent or more since April 2014, she has met the schedular requirements for TDIU for the period on appeal. Next, the evidence reflects that the Veteran fails to meet the threshold requirement of TDIU, that she be unable to secure or follow a substantially gainful occupation, because she has been gainfully employed. Specifically, the December 2019 VA Examination concerning her acquired psychiatric disability reflects that she was employed full-time as a dispatcher for a towing company. Thus, the question is whether the Veteran’s work for AMVID constitutes substantially gainful employment. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration will not be considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability. 38 C.F.R. § 4.17(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). Here, the Veteran has not presented evidence indicating that her full-time employment as a dispatcher does not constitute substantially gainful employment. Specifically, she has not asserted her full-time employment has provided income below the poverty level, nor does any evidence suggest that her full-time employment provides income below the poverty level. Therefore, because the evidence presented has not shown that her employment should not constitute substantially gainful employment, entitlement to TDIU is denied.   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Crosnicker, Associate Counsel