Citation Nr: 21023485 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-16 108 DATE: April 20, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for right knee arthritis is denied. Entitlement to an initial rating in excess of 10 percent for left knee arthritis prior to May 18, 2016 and a rating in excess of 20 percent thereafter is denied. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran has limitation of flexion in his right knee to no less than 40 degrees and no limitation of extension. 2. Prior to May 18, 2016, the Veteran had limitation of flexion in his left knee to no less than 80 degrees and no limitation of extension. 3. As of May 18, 2016, the Veteran has had limitation of flexion in his left knee to no less than 30 degrees and no limitation of extension. 4. The Veteran’s highest combined disability rating, based on multiple disabilities, is 60 percent, and he is not unable to obtain or maintain a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for right knee arthritis have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5003, 5260-5261. 2. The criteria for entitlement to a rating in excess of 10 percent for left knee arthritis prior to May 18, 2016 and a rating in excess of 20 percent thereafter have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5003, 5260-5261. 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1971 to June 1973. In February 2019, the Board denied the issues of service connection for head trauma residuals and for an acquired psychiatric disability, and remanded the remaining issues on appeal for additional evidentiary development. The issue of entitlement to service connection for a back disability was granted in an August 2020 VA rating decision, which represents a full grant of the benefits sought so it is no longer on appeal before the Board. The remaining issues on appeal have been returned for further appellate review. There was substantial compliance with the February 2019 remand directives for the remaining issues on appeal discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Veteran was provided a VA Disability Benefits Questionnaire (DBQ) examination for knee and lower leg conditions in October 2019 and the case was readjudicated in an August 2020 supplemental statement of the case (SSOC). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regards to the issues discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Higher Initial Ratings The Veteran contends he is entitled to higher initial ratings for his right and left knee disabilities. The Veteran’s left and right knee arthritis are rated under 38 C.F.R. § 4.71a. He has a 10 percent rating for right knee arthritis under Diagnostic Code 5003-5261. He also has a 10 percent rating for his left knee arthritis under Diagnostic Code 5003-5261 prior to May 18, 2016. As of May 18, 2016, he has a 20 percent rating for his left knee under Diagnostic Code 5260. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, the rating criteria under these Diagnostic Codes were not changed. Diagnostic Code 5003 applies to osteoarthritis. The Veteran’s initial 10 percent ratings for his right and left knee are based on painful noncompensable limitation of motion. Diagnostic Code 5260 applies to limitation of flexion of the leg and Diagnostic Code 5261 applies to limitation of extension of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to 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 v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” See Correia v. McDonald, 28 Vet. App. 158 (2016). VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). On VA examination in March 2011, the Veteran’s right and left knee range of motion was measured from 0 to 130 degrees. On VA examination in October 2011, the Veteran’s right knee flexion was measured to 110 degrees with pain at 90 degrees. On repetitive use testing flexion was limited to 85 degrees. Left knee flexion was measured to 105 degrees with pain at 80 degrees. On repetitive use testing flexion was limited to 85 degrees. Extension was tested to be normal bilaterally. On VA examination in May 2016, the Veteran’s right knee flexion was measured to 40 degrees with normal extension and his left knee flexion was measured to 30 degrees with normal extension. There was no additional loss of range of motion on repetitive use testing. The examiner opined that additional loss with repetitive use over time could not be estimated as the Veteran was not being examined during such a time. The examiner noted the Veteran had pain with weight bearing and denied having flare-ups. An April 2017 VA treatment record indicates that range of motion testing showed the Veteran to have 80 degrees of flexion on the right and 85 degrees of flexion on the left with hamstring stretching slow but going to full extension. An April 2018 VA treatment record indicates that range of motion testing showed the Veteran to have 85 degrees of flexion on the right and 80 degrees of flexion on the left with sitting extension within normal limits. A March 2019 VA treatment record indicates that range of motion testing showed the Veteran to have 45 degrees of flexion on the right and 65 degrees of flexion on the left with sitting extension within normal limits. On VA examination in December 2019, the Veteran’s right and left knee range of motion on passive and active motion was measured from 0 to 140 degrees. He had evidence of pain with weight bearing on the right. The examiner stated that the Veteran indicated he could not perform repetitive use testing due to significant pain. The examiner opined that after repetitive use over time or during a flare-up, the Veteran’s flexion would be limited to 130 degrees. 1. Entitlement to an initial disability rating in excess of 10 percent for right knee arthritis The Veteran’s right knee flexion has consistently been tested to be greater than 30 degrees. On VA examination in May 2016 his right knee flexion was measured at 40 degrees with no additional loss on repetitive use testing. The examiner acknowledged additional loss with repetitive use over time but opined that an estimate of range of motion could not be given. A March 2019 VA treatment record noted limitation of flexion to 45 degrees, which is the criteria for a 10 percent rating. Other range of motion testing showed flexion between 80 and 130 degrees. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakness, fatigability, incoordination, and during repetitive use over time and during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the Board finds that the degree of additional limitation would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The evidence does not reflect that the Veteran has knee ankylosis, recurrent subluxation or instability, removal or dislocation of semilunar cartilage, limitation of extension, impairment of tibia and fibula, or genu recurvatum such that a higher or separate rating is warranted under any other Diagnostic Code. In conclusion, an initial rating in excess of 10 percent for right knee arthritis is not warranted. 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial rating in excess of 10 percent for left knee arthritis prior to May 18, 2016 and a rating in excess of 20 percent thereafter Prior to his May 2016 VA examination, there is no evidence reflecting that the Veteran’s left knee flexion was limited to 30 degrees or less. On VA examination in March 2011, the Veteran’s left knee flexion was tested to 130 degrees. On VA examination in October 2011, his left knee flexion was tested to 105 degrees with pain at 80 degrees and limitation to 85 degrees on repetitive use testing. The Board finds that there is no evidence supporting that the Veteran’s left knee flexion more closely approximated the criteria for a rating in excess of 10 percent prior to May 18, 2016. On May 18, 2016, the Veteran underwent a VA examination that included range of motion testing that showed the Veteran to have left knee flexion to 30 degrees. The examiner indicated the Veteran would have additional loss with repetitive use over time but opined that such loss could not be estimated as range of motion with the Veteran not in that circumstance during testing. Subsequent range of motion testing shows significantly greater flexion. VA treatment records include an April 2017 record noting flexion to 85 degrees, an April 2018 record showing flexion to 80 degrees, and a March 2019 record showing flexion to 65 degrees. Range of motion testing at the Veteran’s December 2019 VA examination showed flexion to 140 degrees with the VA examiner estimating a reduction to 130 degrees after repetitive use over time or during a flare-up. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakness, fatigability, incoordination, and during repetitive use over time and during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the Board finds that the degree of additional limitation would not result in limitation of motion more nearly approximating flexion limited to 15 degrees. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The evidence does not reflect that the Veteran has knee ankylosis, recurrent subluxation or instability, removal or dislocation of semilunar cartilage, limitation of extension, impairment of tibia and fibula, or genu recurvatum such that a higher or separate rating is warranted under any other Diagnostic Code. In conclusion, an initial rating in excess of 10 percent for left knee arthritis prior to May 18, 2016 and in excess of 20 percent thereafter is not warranted. 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to TDIU VA regulations allow for the assignment of a TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). From October 14, 2010 to May 17, 2016, the Veteran has a combined rating of 40 percent based on multiple service-connected disabilities. From May 18, 2016 to October 4, 2016, the Veteran has a combined rating of 50 percent based on multiple service-connected disabilities. Since October 5, 2016, the Veteran has a combined rating of 60 percent based on multiple service-connected disabilities. The Veteran’s serv-connected disabilities include a back disability, right and left knee disabilities, tinnitus, hearing loss, and scars. Therefore, the Veteran does not meet the schedular rating criteria for TDIU at any time during the appeal period. The Board further finds that referral for extraschedular consideration is not warranted. The central inquiry in entitlement to a TDIU 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor that takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). On October 2011 and May 2016 applications for TDIU, the Veteran reported he last worked in 2006 as an oil field truck driver. However, in July 2018 the Veteran informed the VA that he did not need to pursue his claim for vocational rehabilitation and employment services as he had obtained employment. Subsequent VA treatment records, including most recently in February 2020, indicate that the Veteran remained employed in a position that required truck driving in oil fields. The VA examiner who examined the Veteran in March 2011 opined that the Veteran’s back and knee pain would make physical chores somewhat difficult and painful. On VA examination in October 2011, the examiner indicated that the Veteran’s knee condition prevents him from standing or walking too long. On VA examination in May 2016, the examiner indicated that the Veteran’s knee condition makes it hard to get in and out of a car, would limit his walking and standing, and would prevent him from running and climbing stairs. On VA examination in October 2019, reports indicate that the Veteran’s knee condition would prevent him from running and his back disability would cause difficulty climbing. Thus, the Board finds that although the Veteran’s service-connected disabilities cause him difficulties with some activities, the evidence does not support that it does or has during the period on appeal, resulted in unemployability such that referral for consideration of extraschedular TDIU is warranted. Although the Board acknowledges that the Veteran was unemployed for part of the period on appeal, he subsequently obtained and maintained employment despite his service-connected disabilities, which the record suggests did not improve substantially during that time. Further, the record suggests that his employment involves driving a truck, which is not among the physical activities such as running that VA examiners have opined the Veteran would be unable to do due to his service-connected disabilities. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen 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.