Citation Nr: 21023317 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 08-35 867 DATE: April 20, 2021 ORDER An evaluation in excess of 30 percent from June 1, 2012 for left knee status post total knee replacement is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities from April 5, 2007 is granted. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding the Veteran’s left knee status post total knee replacement resulted in chronic residuals consisting of severe pain and weakness, ankylosis or extension limited to 30 degrees or more from June 1, 2012. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure and maintain substantially gainful employment as of April 5, 2007. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for left knee status post total knee replacement from June 1, 2012 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 2. The criteria for a total disability rating based on unemployability are met as of April 5, 2007. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to August 1968. This matter comes before the Board of Veterans’ Appeal (BOARD) on appeal from a November 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was before the Board and remanded for further development in May 2011, March 2012, October 2015, August 2017, and October 2018. There has been substantial compliance with remand directives and additional remands are not warranted. See Stegall v. West, 11 Vet. App. 268 (1998). In November 2011, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing has been associated with the claims file. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In July 2015, the Board sent a letter to the Veteran, which explained that the VLJ who presided over his hearing was no longer available to participate in the appeal and offered him a hearing before a different VLJ. The Veteran did not respond; therefore, the Board reassigned the matter and proceeded with adjudication of his appeal. During the course of the appeal, a December 2020 rating decision granted entitlement to TDIU, effective November 10, 2015, the date of the Veteran’s application. The Board notes that TDIU is considered part and parcel of the increased rating claim on appeal and, pursuant to Harper v. Wilkie, the Board must consider whether TDIU is warranted prior to November 10, 2015. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that a grant of TDIU for a portion of the appeal period does not bifurcate the appeal and, therefore, is considered a partial grant of the benefit sought); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. An evaluation in excess of 30 percent from June 1, 2012 for left knee status post total knee replacement. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of 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. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id.  Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). All regulations that are potentially applicable must be acknowledged and considered. Schafrath, 1 Vet. App. at 593. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. In this matter, the Veteran contends that he is entitled to a rating in excess of 30 percent after the one-year temporary total rating following convalescence from a left total knee replacement in March 2011. May 3, 2017, Appellate Brief. The Veteran’s disability is currently evaluated as 30 percent disabling under Diagnostic Code 5055. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, changes made to this diagnostic code do not affect the Veteran’s claim and will not be addressed. Pursuant to Diagnostic Code 5055, after the temporary total rating and convalescence period following a total knee replacement, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5256, a 40 percent rating is available for ankylosis of the knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for ankylosis of the knee in flexion between 20 degrees and 45 degrees. A 60 percent rating is assigned for extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. The rating criteria provided for limitation of motion of the knee and leg are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides ratings for limitation of flexion. Flexion of either leg limited to 60 degrees is noncompensable, flexion limited to 45 degrees merits a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent evaluation, and a 30 percent evaluation requires that flexion be limited to 15 degrees. Diagnostic Code 5261 provides ratings of 0 percent for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. For rating purposes, normal range of motion of the knee is from zero to 140 degrees. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5262, a 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. After reviewing the evidence of record and applying the above laws and regulations, the weight of the competent and probative evidence is against finding that a rating in excess of 30 percent is warranted at any time during the period on appeal. The Veteran was afforded left knee VA examinations in April 2012, December 2016, August 2019, and September 2020. In April 2012, he achieved left knee full extension to 120 degrees of flexion. There was no additional limitation in range of motion after repetitive use testing, but the Veteran was noted to have less movement than normal and pain on movement. Muscle strength was rated 4 out of 5 and joint stability testing was normal. There was no tenderness or pain on palpitation, no history of recurrent patellar subluxation or dislocation, and no meniscal conditions. The examiner opined the residuals of the left knee replacement surgery were intermediate degrees of residual weakness, pain, or limitation of motion. See April 16, 2012, VA Examination. In December 2016, the Veteran reported experiencing sharp, momentary intense pain in the medial left knee joint with lifting the leg and rotating the hip externally. Joint pain is also caused by pushing too much leg press weight (80-100 pounds) at the gym. The Veteran indicated that he doesn’t experience much pain in the left knee when walking straight forward but must lead with the left leg and take single steps when walking upstairs. The Veteran stated that he uses a walking cane all the time, has occasional swelling in the left knee, and has generalized knee stiffness in the morning for an hour and after sitting for long periods. The Veteran explained that the right knee was worse than the left. During testing, the Veteran displayed full extension to 115 degrees of flexion with no additional functional loss or limitation in range of motion after three repetitions. No pain was noted upon examination and there was no objective evidence of crepitus or localized tenderness or pain on palpitation of the joint. There was pain with weight bearing examiner opined that instability of station, disturbance of locomotion and interference with standing were additional contributing factors of disability. Muscle strength testing was normal and there was no ankylosis or history or recurrent subluxation or lateral instability. See December 8, 2016, VA Examination. As the examiner did not adequately comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017) or Correia v. McDonald, 28 Vet. App. 158 (2016), a new examination was ordered in an October 2018 Board remand. During an August 2019 VA examination the Veteran described his current symptoms as weakness, collapsing, sharp pain to the medial side of the left knee, occasional pain to the lateral left knee. The Veteran also report constant clicking to the left knee and intermittent sharp pain, level 7 through 9 on a pain scale of 0 to 10. The Veteran indicated that strenuous activity such as lifting heavy objects and working in the yard will cause flare ups while activity such as lifting, walking, and climbing a ladder will cause his knees to give out and severe pain. The Veteran achieved full extension to 112 degrees of flexion. After three repetitions, flexion was limited to 103 degrees and the examiner estimated that pain, fatigue, weakness, and lack of endurance would limit functional ability with repeated use over time and during flare ups to full extension to 103 degrees of flexion. There was pain with weight bearing, objective evidence of crepitus and evidence of tenderness or pain on palpitation on medial and lateral side of the left knee. Strength and joint stability tests were normal, with no ankylosis or pain with non-weight bearing. The examiner opined that the 2011 left knee joint replacement resulted in intermediate degrees of residual weakness, pain, or locomotion. See August 12, 2019, VA Examination. The Veteran reported difficulties standing extending periods of time and initial range of motion was normal during an October 2020 VA examination. Pain was noted with movement and weight bearing. There was no objective evidence of crepitus or localized tenderness or pain on palpitation of the joint. Range of motion testing revealed flexion to 140 degrees and extension to zero degrees. Pain was noted with flexion and extension. There were no additional functional loss or range of motion after three repetitions. The Veteran reported no flare ups and the examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or during flare ups. Muscle strength and joint stability testing were normal. There was no ankylosis or atrophy. The examiner opined that the 2011 left knee joint replacement resulted in pain. See October 9, 2020, VA Examination. In a November 2020 VA addendum opinion, the examiner explained that passive range of motion testing was not performed due to risk of injuring the Veteran. The examiner explained that a “medical provider may inadvertently move the joint past the tolerable point of pain and could potentially cause harm to said joint . . . Comparing one joint to its identical contralateral side is of little relevance and the potential for harm/injury far outweighs the benefits.” The examiner further stated that weight-bearing range of motion testing also “has known inherent risks that could potentially cause harm/injury to an individual.” As such, weight-bearing range of motion testing was not performed. With respect to flare-ups, the examiner indicated that the Veteran did not report flare-ups at the time of the October 2020 VA examination. The examiner continued, “[t]reatment records do not show any annotations that would support a significant loss of functionality or ROM during any flare ups or after repetitive use.” The examiner concluded, “[t]here is not any evidence that additional functional loss after repeated use over time can be accurately reported as a range of motion estimate with any degree of medical certainty.” See the November 13, 2020, VA Addendum Opinion. The August 2019 and October 2020 VA examinations are cumulatively found to be competent, credible, and highly probative as they are supported by an in-person examinations, consideration of lay testimony, review of relevant medical evidence, scientific testing. Moreover, the August 2019 VA examiner was able to render findings as to additional limitation of motion during flare-ups and with repetitive use testing, which specifically complied with Sharp and Correia. The August 2019 and October 2020 VA examiners’ findings and opinions are not contradicted in the evidence of record. VA treatment records reveal very few complaints regarding the left knee status post joint replacement. In January 2013, the Veteran indicated that left knee pain was still present but was only intermittent. In December 2019, the Veteran reported a history of falls within the past year due to his knees giving out but indicated the primary location of pain was low back. In July 2020, the Veteran again reported the primary pain location as the low back and indicated that the low back pain affected walking and was triggered by lifting, standing, and walking. Unlike the low back, the record does not demonstrate chronic complaints of left knee pain and weakness from June 1, 2012. Considering the foregoing, a rating in excess of 30 percent is not warranted. A higher 40 percent rating by analogy under Diagnostic Codes 5256 and 5262 is not warranted as the competent and probative evidence does not demonstrate ankylosis or nonunion of the tibia and fibula with loose motion, requiring brace at any time during the appeal period. A higher 40 percent rating is not warranted under Diagnostic Code 5260 for limitation of flexion as a 30 percent rating is the maximum allowable evaluation. A higher 40 percent rating by analogy under Diagnostic Code 5261 is also not warranted as the competent and probative evidence does not demonstrate extension limited to 30 degrees at any time during the period on appeal. There is no objective or subjective evidence in the VA treatment records or medical opinions that support a finding of chronic residuals consisting of severe painful motion or weakness in the left knee. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for a rating in excess of 30 percent for left knee status post total knee replacement is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 2. Entitlement to a TDIU prior to November 10, 2015. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or, (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Board must therefore evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Based on a review of the record, and after resolving all reasonable doubt in favor of the Veteran, the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure and maintain substantially gainful employment as of April 5, 2007. As of April 5, 2007, the Veteran’s service-connected disabilities included right knee shell fragment wound residuals (30 percent); left knee shell fragment wound residuals (10 percent); right knee degenerative joint disease (10 percent); left knee degenerative joint disease (10 percent); lumbar spine degenerative joint disease; and tinnitus (10 percent), which combined for a 60 percent rating. Service treatment records reveal that in July 1967, the Veteran sustained injury to both knees, arms, face, and ears, including ruptured tympanic membranes, as a result of mortar fire. See July 8, 1967, Narrative Summary. All of the Veteran’s disabilities resulted from injuries incurred in action during the July 1967 incident and are considered as one disability. The schedular threshold requirement for TDIU of one 60 percent disability was therefore met as of April 5, 2007. See 38 C.F.R. §§ 4.16(a), 4.25. The record demonstrates that the Veteran completed four years of college and was employed as quality inspector for small parts in the parts division with Chrysler for thirty years until he retired in 1998 because he could not perform the duties of a new job due to his disabilities. See July 28, 2016, Request for Employment Information; November 10, 2015, VA 21-8940. The Veteran was also a union official during his time with Chrysler. February 3, 2009, Hearing Testimony. Private treatment records reveal that in July 2007 the Veteran presented with complaints of left knee swelling for the past couple of years, particularly since May 2007 with tremendous pain, and now starting to feel pain in his right knee. September 17, 2007, Medical Treatment Record – Non-Government. Imaging revealed a torn medial meniscus, left knee. Id. The Veteran underwent arthroscopic surgery in August 2007. Id. In January 2008, the Veteran complained of significant weakness and fatigue in both knees. May 1, 2008, Medical Treatment Record – Non-Government. The clinician advised the Veteran to avoid kneeling, climbing, squatting, running, jumping, and heavy or aggressive activities. Id. The Veteran was further restriction to limited walking. See id. An October 2007 VA bilateral knee examination noted daily flareups precipitated by activity that lasts until the Veteran stops and rest. October 13, 2007, VA Examination. The examination revealed pain on motion bilaterally and a lack of endurance in the left knee. Id. VA treatment records reveal the Veteran complained of persistent left knee pain and swelling with intermittent right leg numbness and pain. December 19, 2007, Ambulatory Care Note. The Veteran continued to complain of chronic knee pain, that gradually worsened. By January 2009, left knee imaging revealed the medial compartment was bone on bone with a varus deformity and a left total knee replacement was inevitable. January 5, 2009, Orthopedic Surgery Consult Note. At a February 2009 RO hearing, the Veteran testified he wears bilateral knee braces, uses a cane for ambulation and has a TENS unit for back pain. February 3, 2009, Hearing Testimony. The Veteran stated that he has constant pain in his back such that he cannot go shopping with his wife or stand long. Id. The Veteran further testified that he’s been a “good veteran” and didn’t come to the VA for many years, but the pain became so much that he didn’t have a choice. See id. Later in 2009, the Veteran was noted to have gait and balance problems and described constant pain and a history of falls due to his knees giving out. September 22, 2009, Primary Care Nursing Note. In February 2010, the Veteran noted that pain significantly interfered with general activity, mood, walking, normal work, relationships with other people, and enjoyment of life. February 2, 2010, Pain Follow-Up Clinic Note. Pain moderately interfered with sleep. Id. Failed conservative treatment and progressive left knee degenerative changes began affecting the Veteran’s ability to perform his activities of daily living and he underwent a left total knee arthroplasty in March 2011. April 5, 2011, Discharge Summary. During a November 2011 Board hearing, the Veteran testified that he could not stand for longer than 15 minutes. November 18, 2011, Hearing Testimony. He further testified that he has more pain now in the left knee than he did prior to the replacement surgery. Id. The Veteran explained that the right knee snaps and pops and will need a replacement. Id. He explained that his quality of life is limited to sitting and watching television as engaging in more activity cause flareups. Id. An April 2012 VA examiner opined that the Veteran’s bilateral knee condition posed limitations on bending, lifting, squatting and prolonged sitting or standing. April 16, 2012, VA Examination. By November 2014, the Veteran’s right knee became increasingly symptomatic and stopped responding to medical treatment. November 13, 2014, Surgery History and Physical Note. The Veteran underwent a right total knee replacement later that month. November 24, 2014, Operative Note. In light of the above, the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure and maintain gainful employment as of April 5, 2007. Specifically, the Veteran was unable to perform work requiring prolonged sitting, standing, or walking due to his bilateral knee and back disabilities. The Veteran also had significant limitations in kneeling, climbing, bending, squatting, and lifting objects. Resolving reasonable doubt in favor of the Veteran, the Board finds that the competent and probative evidence is at least in equipoise as to whether the functional impairment due to his bilateral knee and back disabilities, when taken in conjunction with the Veteran’s educational background and occupational history, precluded gainful employment as of April 5, 2007, the entire period on appeal. TBD To Be Determined Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.